R v Domokos - [2005] SASC 266

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOMOKOS & ORS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)
20 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against convictions - the appellants were convicted in the District Court for offences of being knowingly concerned with the importation of a prohibited import, MDMA, into Australia contrary to the Customs Act 1901 (Cth) - the offences related to two parcels intercepted by customs containing MDMA - issues on appeal - the admissibility of, and directions relating to, evidence of earlier parcels known to have been sent and/or received the contents of which were unknown - directions relating to evidence of a series of earlier international money transfers - the reliability of, and directions given relating to, a key prosecution witness who was an accomplice and who had suffered prior psychotic episodes during earlier trials - directions on voice identification evidence - directions given on the elements of the offence - jury access to evidence of a telephone call which was then ruled inadmissible at the end of the trial - the admissibility of evidence of handwriting of one appellant - whether the trial Judge failed to properly direct the jury in relation to the whole of the evidence against one appellant - whether the verdicts against two of the appellants were unsafe and unsatisfactory - leave sought to appeal on the finding of a case to answer for one appellant (leave refused) - leave sought to appeal against refusal to order separate trial for one appellant (leave granted) - appeals dismissed.
Customs Act 1901 (Cth) s 233B(1)(d); Crimes Act 1914 (Cth) s 3ZJ; Criminal Law Consolidation Act 1935 s 353(1), referred to.
Pfennig v The Queen (1995) 182 CLR 461; R v Palaga (2001) 80 SASR 19; Bromley v The Queen (1986) 161 CLR 315; R v Domican (1992) 173 CLR 555; R v Collie (1991) 56 SASR 302, discussed.
R v Neiterink (1999) 76 SASR 56; Burns and Collins (2001) 123 A Crim R 226; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106, considered.

R v DOMOKOS & ORS
[2005] SASC 266
Court of Criminal appeal: Doyle CJ, Perry and Sulan JJ

DOYLE CJ: Mr Domokos, Mr Virag and Ms Mica were tried together in the District Court and found guilty by a jury of the offence of knowingly being concerned in importing into Australia a prohibited import contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The prohibited import was a substance sometimes known as “MDMA” and more commonly known as ecstasy.
On the first count Mr Domokos and Mr Virag were found guilty. On the second count Mr Domokos and Ms Mica were found guilty. Mr Virag and Mr Marjoran were also charged on the second count, but were found not guilty by direction of the trial Judge.
Mr Domokos, Mr Virag and Ms Mica now appeal on grounds that raise the admissibility of evidence; the soundness of the Judge’s directions; in the case of Mr Domokos, the Judge’s finding that he had a case to answer, and in the case of Ms Mica, the Judge’s refusal to order a separate trial. Leave to appeal was granted in respect of most of the grounds raised. No leave was required by Ms Mica as to two grounds. Leave to appeal was refused to each of Mr Domokos and Ms Mica on one ground. The application for leave to appeal was renewed by each of them before this Court.
Facts
I will summarise the facts, before turning to the grounds of appeal. What follows is only an outline of the prosecution case. The case was a long one, extending over about six weeks, once the jury was empanelled.
On 4 October 2000 customs officers in Sydney examined a parcel at a parcel centre and found tablets containing ecstasy concealed in a photo album in the parcel. The parcel came from Germany, and was addressed to Kocis Harpad at an address in Waikerie in South Australia, which was the address of Mr and Mrs Demeter. I will call this parcel the Waikerie parcel.
Most of the tablets were removed. Federal officers made a “controlled delivery” on 10 October. The parcel was accepted by Mrs Demeter. On 11 October Federal Police returned to the house, where they found the parcel unopened. Mr and Mrs Demeter were arrested and charged with knowingly being concerned in importing a prohibited import. They agreed to assist the authorities. In a nutshell, Mr Demeter told the police that he had agreed with Mr Domokos to receive the parcel for a payment of $500, and that Mr Domokos had arranged to collect the parcel when he returned from an overseas trip. Mr Demeter admitted that he suspected that drugs were involved, although Mr Domokos had denied that. On 10 October Mr Demeter telephoned Mr Domokos, and told him that the parcel had arrived. Mr Domokos was overseas at that time.
On 18 October Mr Domokos rang Mr Demeter from overseas. He spoke about collecting the parcel. Mr Domokos returned to Australia on 25 October 2000, telephoned Mr Demeter on 26 October and arranged to come to Waikerie to collect the parcel.
On 27 October 2000 Mr Domokos and Mr Virag drove from Adelaide to Waikerie, and went to Mr Demeter’s home. They were accompanied by Ms Heithersay, who was Mr Domokos’ girlfriend, Mr Ronkay and Mr Nyitrai. There Mr Domokos and Mr Virag were arrested. Mr Domokos denied any knowledge of the drugs.
Meantime, on 9 October 2000 a customs officer detected tablets containing ecstasy in two parcels at an airmail transfer centre in Melbourne. The tablets were again concealed in two photograph albums. The parcel was addressed to “Petite Gerard” at 42 Cardigan Street, Angle Park. This was the address of Ms Mica.
The tablets were removed, and a controlled delivery was made on 13 October 2000. At this time Mr Domokos was still overseas. Ms Mica accepted the parcels. She answered some questions from the courier in a way that implied that “Petite Gerard” lived at the house, and that she knew him. I will call these parcels the Angle Park parcels.
Next day the police went to Ms Mica’s home. The parcels were found unopened under a bed. Ms Mica was arrested. That evening the police recorded an intercepted telephone conversation between Mr Marjoran and Mr Virag. The mobile telephone used by Mr Virag was one that Mr Domokos had been using, but was being used by Mr Virag while Mr Domokos was overseas. Mr Marjoran told Mr Virag there was trouble, and said “we have to evacuate”, and said that Ms Mica had been arrested.
The prosecution had to prove in relation to each count that each of the accused played some part in the importation of the ecstasy. As there was no doubt that the photograph albums had ecstasy tablets in them, the focus was on proving some role in the dispatch of the parcels from overseas, or in the receipt of the parcels. The prosecution also had to prove that each accused knew that the packages contained ecstasy. These were the central aspects of the case, as there was no doubt that ecstasy was in fact imported. The prosecution was not able to identify the precise role played by each accused. Nevertheless the prosecution case was that Mr Domokos played a central part. The prosecution relied also on the concept of joint enterprise.
The prosector led a substantial amount of circumstantial evidence in proof of the case.
Ms Mica and Mr Marjoran were in a relationship. He had a house at Elizabeth Downs. The evidence was that he spent time at Ms Mica’s house. Mr Domokos and Mr Virag were friendly. They had shared a house at 38 Darley Road, Paradise. All of the accused knew each other.
Evidence was led relating to some other persons who were acquainted with the accused. They were Ms Heithersay, the girlfriend of Mr Domokos, Mr Nyitrai, Mr Ronkay, Mr Ivancu and Mr Lakatos. No member of this group was on trial, but the prosecution case was that they were part of the overall enterprise in which the accused were involved.
Between 7 February 2000 and 13 October 2000 about $114,000 was sent overseas by a series of money transfers by the accused, by one of the other group mentioned or (as the accused argued) by someone using the name of one of these people. The evidence identifying the accused or another person named as the actual sender varied in strength from occasion to occasion. Most of the transfers were made from the office of a firm named Travelex. Evidence was given that its procedure was to require photo certification by a driver’s licence or passport. The individual amounts ranged from about $1,500 up to about $9,000. Six transfers were made in the name of Ms Mica, five in the name of Mr Marjoran, two in the name of Mr Domikos, three in the name of Mr Virag, one in the name of Ms Heithersay and one in the name of Mr Ronkay. The prosecution led evidence suggesting that the accused were in receipt of social security benefits, and had no apparent explanation for their ability to send these amounts of money overseas.
A number of different transferees were named on the relevant documents. About $25,000 was sent to Mr Domokos. About $17,000 was sent to Ioan Domokos, his father. Some of the recipients could be linked to the accused.
Mr Domokos left Australia on 23 July 2000, and returned on 25 October 2000.
The police searched Ms Mica’s premises at 42 Cardigan Street, Angle Park. They found some documents relating to the transfer of money, and relating to Mr Marjoran and to Mr Virag.
The police searched the premises at 38 Darley Road, Paradise, which were occupied for some time by Mr Domokos and Mr Virag. They found various documents, such as bills, letters and motor vehicle documents in the name of Mr Virag, Mr Domokos and Ms Mica. In particular they found a sheet of paper. Evidence was led that the writing on the paper was the writing of Mr Marjoran. On the sheet of paper there were written four addresses: 61 Dunorlan Road, Edwardstown, the address of Mr Lakatos; 42 Cardigan Street, Angle Park, the address of Ms Mica; 61 Fairfield Road, Elizabeth Grove, the address of Mr Ivancu and 62 Sixth Avenue, Ascot Park, the address of Mr Ronkay. Mr Ronkay was one of those who drove to Waikerie with Mr Domokos. There was a note handwritten on the sheet of paper. Evidence was led that it was written in Romanian, and that it read:
And when you send again please fax us you sent it and the name.
Below that, also handwritten, was a telephone and fax number which was said to be that of Mr Virag, and then the words “Don’t forget”.
At 38 Darley Road the police also found a faxed copy of a Waybill relating to a shipment of a parcel from a person in Moldova to Ion Marinescu at 42 Cardigan Street, Angle Park, the address of Ms Mica. The parcel had been shipped on 27 August 2000. Evidence was led that the parcel was collected by a woman who identified herself as “Magdalena”, the given name of Ms Mica. On the evidence, it could have been collected without producing identification. There was no evidence as to the contents of the parcel.
The police found another copy of a Waybill at 38 Darley Road, this one relating to two parcels shipped from a person in Moldova and addressed to Alex Roberts at 61 Dunorlan Road, Edwardstown, the address of Mr Lakatos. Those parcels were shipped on 22 May 2000. The evidence was that a courier had gone to the address on two occasions, but had been unable to deliver the parcel. The parcel was returned to Sydney. There was no evidence about the contents of the parcel.
The police also found a notebook with names and addresses, some of which could be linked to persons to whom money was sent.
The prosecutor led evidence of a number of intercepted telephone conversations involving the accused. They showed that the accused were known to each other, that there was some sharing of mobile phones (between Mr Virag and Mr Domokos), and some of the conversations were open to the interpretation that they were of an incriminating nature.
Mr Demeter was a prosecution witness. He had pleaded guilty to a lesser charge. He gave evidence that he knew Mr Domokos, and through him had met Mr Virag, Mr Marjoran and Ms Mica. He said that in April 2000, during a visit to Waikerie, Mr Domokos asked him to receive a parcel. He gave evidence relating to the receipt of the parcel, to his telephone contact with Mr Domokos and others, and relating to the visit by Mr Domokos to Waikerie to collect the parcel. Mr Demeter also gave evidence that he had listened to recordings of a number of intercepted conversations involving the accused. He gave evidence identifying their voices.
In opening, the prosecutor told the jury that the case against Mr Domokos in relation to the Waikerie parcel and the Angle Park parcels, was based on evidence of him sending money overseas; an inference that while overseas he obtained the tablets, or arranged to obtain them, and to dispatch them to Australia; evidence of him making arrangements for the receipt of the parcels, and following up with enquiries about the arrival, and then arranging to collect the Waikerie parcel. As to Mr Virag he said the case was based on him sending money overseas, and being involved in the collection of the Waikerie parcel. As to Ms Mica, he said the case was based on her sending money overseas and receiving the Angle Park parcels. This evidence was the evidence of direct involvement.
Apart from that, the prosecution case was that there was what the prosecutor called “an overall enterprise” involving sending money overseas, obtaining drugs, and sending the drugs to a fictitious person but at a genuine address linked to the accused.
The evidence of money transfers before Mr Domokos went overseas, between February 2000 and June 2000, and the evidence of the parcels not the basis of a charge (the Marinescu parcel arriving in April 2000 and the Roberts parcels arriving in May 2000) is the subject of a challenge to its admissibility. I will call it the challenged evidence. In his closing address the prosecutor relied on the evidence of the “ongoing enterprise” for a context or background against which the evidence relating to specific counts could be assessed. He said this evidence could establish “the requisite know-how, expertise, contacts to carry out the specific importations”. The prosecutor appeared to treat slightly differently the evidence of the money transfers stretching back to February, and the evidence of the Marinescu and Roberts parcels. The prosecutor told the jury that the Marinescu and Roberts parcels were another example of sending drugs to a fictitious name at a real address. He told the jury that unless they were satisfied beyond reasonable doubt that these two parcels reflected two further instances of importing drugs and sending them to a fictitious person at a real address, the evidence in relation to the two Waybills was not going to be of any assistance to them. The prosecutor submitted that when all of the evidence was examined it led to the conclusion that the Marinescu parcel contained drugs, and that Ms Mica had collected it knowing this to be the case. The prosecutor pointed to various items of evidence and aspects of the evidence, including the association between Ms Mica and Mr Domokos. The money transfers were significant. But there was other aspects of the evidence capable of supporting the prosecution case. The prosecutor took the same approach in relation to the Roberts parcel. Along the way he made the point that the handwritten note on the sheet of paper, referred to above, might refer to the Roberts parcel not having been successfully delivered. I will return to this topic in due course.
This was the third trial of the Information. At the first trial the jury was discharged after about four weeks when Mr Demeter became unwell. At the second trial the jury was discharged after about six weeks as a result of an incident involving contact between a juror who had been discharged and the balance of the jury panel.
None of the appellants gave evidence.
I will deal with the Judge’s directions when dealing with particular grounds of appeal.
The admission of evidence relating to transfers of money between February 2000 and about June 2000 – Domokos Ground 4 and Virag Ground 2

The admission of evidence of and relating to the Marinescu and Roberts parcels and the Waybills – Domokos Ground 4 and Virag Ground 2, Mica Grounds 2 and 3

The admission of evidence of money transfers in the name of Mica in February 2000 – Mica Ground 4
It is convenient to deal with these grounds together.
There was no direct evidence as to the contents of the Marinescu or Roberts parcels. There was no evidence even as to the size or weight of the parcels. The evidence linking Ms Mica to the Marinescu parcel was not strong, because the parcel could have been collected by someone other than Ms Mica using the name “Magdalena” and giving her address. On the other hand, there was other evidence suggesting she had collected the parcels. I will not detail it. The Marinescu and Roberts parcels arrived respectively in April and May 2000, while Mr Domokos was in Australia. This was five or six months before the other parcels arrived. As to the transfers of money in February in the name of Ms Mica, the only connection was her name. There were no fingerprints of hers on the transfers, there was no expert evidence that the signatures were hers, indeed the expert on handwriting who was called said that the signatures on the three documents appeared to be different. No identification had been required from the sender. The address of the sender was not proved to be linked to Ms Mica.
Counsel for each appellant submits that the jury could not properly find beyond reasonable doubt that these two packages contained drugs, or that any of the appellants were involved in the importation of these parcels. Accordingly, the evidence of these parcels, and of the transfers of money in the early part of the year, were of no probative value and had considerable prejudicial effect, because of the suggestion that they were somehow linked to the importation of drugs. The prejudicial effect was said to outweigh any probative value.
Counsel for the appellants also submit that the use of this evidence involved circular reasoning. The reasoning was said to be along the lines that the only basis for a conclusion that the Marinescu and Roberts parcels contained drugs was the presence of drugs in the Waikerie and Angle Park parcels, the basis of counts 1 and 2. But, and this was said to be the circularity, the Marinescu and Roberts parcels were being used, apparently with evidence of the earlier money transfers, to prove that the appellants knew the later arriving Waikerie and Angle Park parcels contained drugs, that had been imported.
The starting point as always is to consider whether and how the challenged evidence was relevant.
The prosecution case linked the appellants to the Waikerie and Angle Park parcels, both directly and indirectly. I have outlined how, although I have not done so in complete detail. Those parcels contained ecstasy. There was evidence supporting an inference that they were dispatched while Mr Domokos was in Europe and when he was in a position to arrange for them to be dispatched. Money transfers made while Mr Domokos was away, and shortly before he left, could well have been intended as payment for drugs in these parcels.

The main issue was whether the appellants knew the parcels contained drugs being imported into Australia. There was evidence from which the jury could so find, without relying on the challenged evidence.
The challenged evidence can be considered as of two kinds. The evidence of the money transfers from February to June covers 15 separate transfers amounting to about $54,650. There was evidence linking the appellants to these transfers, as with the others, either as the named sender or because the named sender was an associate of the appellants. The evidence linking the appellants as named senders was of varying strength. Photo identification was often called for. But the overall effect of the pattern of money transfers, from February to October was significant. The challenged evidence as to money transfers was capable of supporting and strengthening a conclusion that the appellants were engaged in some kind of joint activity, involving the sending of money overseas, and possibly involving their associates as well, and of supporting and strengthening a conclusion that the appellants, or some of them, had contacts overseas in places from which the parcels, the basis of counts 1 and 2, came.
The challenged money transfer evidence, considered with the evidence relating to the Waikerie and Angle Park parcels, the subject of counts 1 and 2, and other circumstantial evidence, was capable of supporting and confirming a conclusion that the appellants and their associates were sending money overseas for the purchase of the drugs found in the parcels. There was no reason at all to assume that only money sent shortly before Mr Domokos went overseas, or after he went overseas, was sent to obtain drugs.
In that context the challenged evidence relating to the delivery of the Marinescu parcel and the attempted delivery of the Roberts parcels to addresses linked to the appellants, and recorded on the sheet of paper found at 38 Darley Road, became significant. It was also highly significant that the copy Waybills relating to these parcels were found at this house. I agree with counsel for the appellants that the significance of the Marinescu and Roberts parcels comes in part from the fact that ecstasy was found in the two later parcels. When that evidence is taken into account it was open to the jury to reason that when the whole course of events is surveyed, including the challenged evidence, the proper conclusion was that the Roberts and Marinescu parcels were part of a scheme to obtain drugs by sending money overseas, and having drugs sent to addresses in Australia with which the appellants were connected, but using false names. I agree that without referring to the ecstasy, the subject of counts 1 and 2, one could hardly draw an inference that the Marinescu and Roberts parcels contained drugs.
That is the relevance of the challenged evidence. Not only was it relevant, it pointed strongly to a conclusion of guilt. Such reasoning is not mere speculation. The circumstances as a whole suggest strongly that the Marinescu and Roberts parcels were part of the scheme.
I am not persuaded that the challenged evidence had to satisfy the high standard that applies to the admission of similar fact evidence, as established by the High Court in Pfennig v The Queen (1995) 182 CLR 461. The test for the admissibility of such evidence was described by Mason CJ, Deane and Dawson JJ as follows at 481-482:
… [T]he basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.
I discussed this principle, and the circumstances in which it applies, at some length in R v Palaga [2001] SASC 174; (2001) 80 SASR 19 at [38] – [54]. I will not repeat that discussion here. There I rejected a submission that whenever evidence discloses the commission of an offence other than the offence charged, and the evidence is tendered in proof of an offence, that evidence must meet the test stated in Pfennig. I drew on my reasons in R v Nieterink (1999) 76 SASR 56, and I do so again. On this point I refer also to the reasons of this Court in Burns and Collins [2001] SASC 263; (2001) 123 A Crim R 226 at [37] – [41].
Because of the manner in which the challenged evidence was used in the present case, I consider that it does not attract the principle stated in Pfennig. The evidence was not used, as similar fact evidence is often used, to establish a pattern or distinctive feature of offending conduct, the presence of which in the case of incidents charged could then be used to identify the appellants as the offenders, the appellants having been identified by other evidence as the offenders in instances in which the pattern or distinctive feature was present. Nor was the evidence used to argue that if the appellants imported drugs in the Marinescu and Roberts parcels, it was improbable that some person other than the appellants committed the offences charged. The challenged evidence was not used to prove a propensity to commit a crime of a particular type, or a crime involving a particular person. When evidence of other offences is used in those ways, the principle in Pfennig is attracted.
In the present case, as in Palaga, the challenged evidence was used in a different way. It was used to prove a course of conduct over a period of about eight months. The course of conduct involved the sending of money overseas by the appellants and their associates, and the sending of parcels to addresses to which the appellants were linked but using false names. When the whole course of conduct is surveyed, with the other circumstantial evidence, in particular the evidence of associations between the appellants, the whole picture, including the challenged evidence, has a persuasive effect. To my mind this is a case of proving something akin to an ongoing business enterprise, the existence of which then gives to things occurring in the course of that enterprise a significance that they would not otherwise have.
For those reasons I consider that the evidence was relevant, was strongly probative of the prosecution case, and was admissible without reference to the exclusionary principle stated in Pfennig.
But even if that principle applies, and the challenged evidence had to be so cogent that, if accepted, it could bear no reasonable explanation other than the inculpation of the accused in the offence charged, I am satisfied that the challenged evidence met that test: see Pfennig at 481-483. Against the background of a long series of money transfers, the use of addresses and false names, the association between the appellants and others involved in the money transfers, and the other incriminating evidence, including the Waikerie and Angle Park parcels, the inference that the Marinescu and Roberts parcels were part of the overall scheme was a very strong one.
If anything, the Judge’s directions to the jury in relation to the challenged evidence were favourable to the appellants.
The Judge gave the jury a thorough and helpful direction about the evidence relevant to the guilt of Mr Domokos on count 1.
The structure of the direction was, in outline, as follows. First, he directed the jury about the links between the appellants, Mr Marjoran, and the other associates. Then, turning specifically to count 1, he went through the evidence relating to dealings with the Waikerie parcel. This included directions at some length about the evidence of Mr Demeter, directions as to telephone calls and directions as to Mrs Demeter’s evidence. He referred to the evidence of money transfers as part of the circumstantial evidence, but seemed to treat the money transfers earlier in the year (that is, some of the challenged evidence) as relevant only or mainly to the Marinescu and Roberts parcels, to which he said he would come later. However, he made specific reference to the alleged transfers of money in February by Ms Mica. Then he came to the evidence about the two Waybills, and the Marinescu and Roberts parcels. He told them at the outset that they would have to determine, in relation to Mr Domokos and count 1:
… whether you are satisfied beyond reasonable doubt that the parcels [the Marinescu and Roberts parcels] did contain illicit drugs, that the source of the parcels was from overseas, and that the accused Domokos was involved in the importation before you can use the evidence.
He then directed them at some length about the evidence, including criticisms of the evidence made by defence counsel. He completed the topic by reminding them that the Waybills were relevant on the issue of whether Mr Domokos was aware there were drugs in the Waikerie parcel, and that was the only relevance of the evidence relating to the Waybills. He told the jury that if they were not satisfied of the matters that he identified for them in relation to the Waybills, they should discard the evidence relating to the Waybills and also the evidence of the earlier money transfers. He specifically warned the jury not to reason that if they were satisfied that the Marinescu and Roberts parcels contained drugs, and that Mr Domokos was involved in the importation, that it followed that he was a person likely to have committed the offence charged.
In effect the Judge directed the jury that if they were satisfied that the Marinescu and Roberts parcels were used to import drugs, to the knowledge of Mr Domokos, and he was involved in that, they could use that finding as a basis to find that Mr Domokos knew that the Waikerie parcel contained drugs.
This direction might have suggested to the jury (it is not entirely clear) that they had to consider the evidence relating to the Marinescu and Roberts parcels and the earlier money transfers as a separate body of evidence, and use it in relation to guilt on count 1 only if satisfied from that separate body of evidence that the Marinescu and Roberts parcels were used by Mr Domokos to import drugs.
In my opinion the challenged evidence was able to be used on a broader basis. The jury were entitled to look at the whole of the evidence, from February through to October, including the fact of drugs being found in the Waikerie parcel and the Angle Park parcels, to conclude that all of this activity was part of a system for purchasing and arranging the importation of drugs, and that Mr Domokos was involved. The jury could infer that those parcels also had contained drugs, and could infer from the totality of the evidence that Mr Domokos was knowingly involved in the importation of drugs in those parcels and in the Waikerie parcel.
The Judge gave the jury a similar direction in relation to Mr Domokos on count 2.
As to Mr Virag, and the Waybills, the Judge told the jury that they could bring the circumstances of the Marinescu and Roberts parcels into account if satisfied beyond reasonable doubt that those parcels contained illicit drugs, that the source of the parcels was from overseas and that Mr Virag was involved in the importations. If so satisfied, they could use the evidence for the specific purpose of deciding whether Mr Virag went to Waikerie to assist in the collection of a parcel which he knew contained drugs.
As to Ms Mica, the Judge said that only the Marinescu parcel was relevant. He told the jury that they could use the evidence about this parcel only if satisfied beyond reasonable doubt that it contained illicit drugs, that it was sourced from overseas, that she knew about it, that she was the person who collected the parcel and that she knew it contained illicit drugs. If so satisfied they could use the evidence with other evidence in deciding whether she knew that drugs were contained in the Angle Park parcels when she received them.
The submissions by the appellants were founded in part on this approach. They submit that the jury could not reach the required conclusion beyond reasonable doubt in relation to the Marinescu and Roberts parcels if the evidence relating to them was considered in isolation from the other evidence on count 1 and count 2. As I have said, I am inclined to agree with this submission.
It is not clear to me whether the Judge was telling the jury to consider the challenged evidence as if it were in a separate compartment. I doubt whether he was, but it is possible. In relation to it he referred to evidence of the associations between the appellants, and of the finding of documents at various addresses. But even if that is how the jury understood the direction, the only effect of the direction was to prevent the jury from giving the challenged evidence its full effect. It might have led to them putting it to one side. That might have been the result if they considered that they were not entitled to consider the challenged evidence against a background of the evidence relating to count 1 and count 2.
If that is how the jury reasoned, it did not give rise to a miscarriage of justice. If that was how the Judge’s direction was understood, first of all it did not render the evidence inadmissible. The evidence was admissible, but was left to the jury on a basis unduly favourable to the appellants. The evidence did not have to be excluded applying the principle identified by the High Court in Pfennig. The fact that the basis for its use might have been put too narrowly, resulting in the jury putting it to one side, does not give rise to a miscarriage of justice as a result of the possibility of the jury having been influenced by evidence which should not have been put before them.
For those reasons I conclude that these grounds of appeal are not made out.
The Judge’s directions relating to Mr Demeter’s reliability

Domokos Ground 1 and Virag Ground 6
Counsel for Mr Domokos and Mr Virag submit that the Judge should have warned the jury that Mr Demeter suffered from a mental disability or illness that might affect his capacity to give reliable evidence. They rely on the reasons of Gibbs CJ in Bromley v The Queen (1986) 161 CLR 315 at 319.
This was the third trial of the accused. The first trial terminated as a result of Mr Demeter suffering an acute psychotic episode. Mr Demeter was cross-examined at some length at the third trial about the state of his mental health.
He agreed that he had heard voices during the first trial. The jury heard that he was taking anti-psychotic medication. There was an unusual incident when he was giving evidence about events when Mr Domokos came to his house to collect the Waikerie parcel, and was arrested. Mr Demeter was shown some photographs of the interior of the house. But, unaccountably, he denied that most of the photographs were pictures of his house.
Mr Demeter was also cross-examined about some inconsistencies in his evidence and about some mistakes or changes of mind in relation to his identification of voices when listening to tapes of intercepted telephone conversations. He admitted that he made a number of mistakes or changes of mind. I put that evidence to one side. There is nothing in this evidence suggesting that it has anything to do with a mental disorder.
Mr Demeter agreed that during the first trial he thought the police were trying to kill him. He said that he no longer thought that. However, he did say that he believed that the police wanted to “put me in gaol”. He thought they would do that if he did not give evidence. In view of his role as an accomplice, the fact that he had pleaded guilty to a lesser offence and had received favourable treatment, and that he was now being called as a witness for the prosecution, my view is that there is nothing irrational or delusional about what he said, although that belief is a relevant factor when considering the truth of his evidence. One could well understand him thinking that the police still thought he should be locked up, and thinking that he was at risk of being locked up if he did not give truthful evidence.
Not only were these issues explored in Mr Demeter’s evidence, the prosecutor also called a psychiatrist, Dr Lucas. He had examined Mr Demeter in August 2003, between the first trial and the second trial. He obtained a history of a short acute psychotic episode during the first trial. Mr Demeter told Dr Lucas that he had been hearing voices. Dr Lucas attributed the psychotic episode to stress arising from the giving of evidence. His opinion in August 2003 was that Mr Demeter had recovered, and that his condition was controlled by medication. He thought that Mr Demeter was competent to give evidence.
Dr Lucas gave evidence of seeing Mr Demeter again on 12 May 2000, shortly before the third trial. In his opinion there had been no recurrence of the psychosis. Mr Demeter had improved, although not surprisingly he was anxious about having to give evidence.
Dr Lucas saw Mr Demeter again after he gave his evidence, on the morning on which Dr Lucas gave evidence at the third trial. There was no change in Mr Demeter’s condition or in Dr Lucas’s opinion. Both Mr Demeter and Dr Lucas were questioned about Mr Demeter’s use of alcohol. Mr Demeter had described himself as an alcoholic. He said that he had been told by his doctor to limit his intake of alcohol to about two glasses of wine a day. When cross-examined Dr Lucas did not express any particular concern about Mr Demeter’s consumption of alcohol.
Dr Lucas was cross-examined about Mr Demeter’s failure to recognise pictures of the interior of his house. Dr Lucas denied that this was indicative of a psychotic state. He said it did not reflect delusional behaviour. In his opinion the explanation was not psychiatric in origin. Dr Lucas also, to my mind not surprisingly, said that Mr Demeter’s fear of the police was not a delusional fear, even if it was somewhat irrational.
It is pertinent to note that Mr Demeter’s mental state was explored thoroughly before the jury. The jury heard expert psychiatric evidence on the topic. The effect of the evidence was that Mr Demeter had had a psychotic episode, but that his condition was controlled by medication, and that there were no indications of psychotic behaviour. There was plenty of evidence to corroborate much of what Mr Demeter told the jury about the Waikerie parcel. His evidence was supported in significant aspects by the evidence of Mrs Demeter.
The Judge gave the jury a full warning referable to the fact that Mr Demeter was an accomplice. He told the jury that it was dangerous to convict on his evidence unless it was corroborated. He directed them in relation to evidence that was corroborative, in relation to the significance of Mr Demeter’s plea of guilty and the significance of the reduction in sentence that he obtained. He dealt with inconsistencies in Mr Demeter’s evidence. He reminded the jury that Mr Demeter admitted that he was an alcoholic in June 2000. He reminded them of Mr Demeter’s admitted errors in identifying voices. He reminded them of Mr Demeter’s failure to recognise pictures of his house, and of the submission that this “calls into question Mr Demeter’s mental health”. He reminded them of Dr Lucas’s evidence. He summarised that evidence. He said:
Mr White [counsel for Mr Domokos] in his address said that Mr Demeter was psychotic and an alcoholic. In considering this submission, you might think, if you accept the evidence of Dr Lucas regarding the state of his mental health, that Mr White’s submission that Mr Demeter was psychotic cannot stand.
Ladies and gentlemen, clearly you need to take into account Mr Demeter’s evidence on this topic when you are evaluating his reliability as a witness. Whether you think such a failure on Mr Demeter’s part leads you to the conclusion that you cannot rely upon his evidence is a matter for you.
The second paragraph refers to the evidence relating to the photographs. Counsel for the appellants submit that these directions are inadequate.

In Bromley Gibbs CJ at 319 said that if the evidence of a witness might be unreliable because of a mental disability, which affects his capacity to give reliable evidence:
… the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness is potentially unreliable, it should be explained to the jury why that is so.
The other members of the Court, other than Brennan J, agreed with the reasons of Gibbs CJ. Brennan J was in substantial agreement, but took the view that a warning was called for only if the danger of acting on the evidence of the witness might not have been fully perceived by the jury: at 325.
In the present case the question of whether Mr Demeter suffered from a mental disability affecting his reliability was dealt with at some length before the jury. The expert suggested that there was no reason to doubt his capacity to give reliable evidence. The condition from which he suffered was being managed by medication. The Judge was right to tell the jury that if they accepted Dr Lucas’s evidence, there was no reason to doubt Mr Demeter’s evidence on the grounds that it was evidence of a person suffering from a mental disability that affected his reliability. The only evidence that raised the possibility of a mental condition affecting his evidence was the odd failure to recognise photographs of his house. But even if the jury did not accept Dr Lucas’s evidence, in the circumstances of this case it was not necessary for the Judge to do more than he did. He pointed out that an issue for them to consider was whether Mr Demeter was suffering from a condition that affected his reliability. In all the circumstances it was not necessary for him to tell the jury that it was dangerous to convict on his uncorroborated evidence, if that was their view. It would have been better if the Judge had done so, but the jury must have understood that this was the reason why the issue had been ventilated. As well, the jury had already had a warning to that effect related to the fact that Mr Demeter was an accomplice. A second warning, with a second reminder that the presence of corroboration might cause the jury to accept Mr Demeter’s evidence in any event, could not have made any significant difference.
In my view, these grounds of appeal are not made out.
The Judge’s directions to the jury about Mr Demeter’s voice identification evidence – Domokos Ground 2
Mr Demeter gave evidence identifying voices on recordings of telephone calls that had been tape recorded by the police. Mr Demeter was a party to most of these calls. The complaint is that the Judge’s warning about the dangers of relying on voice identification evidence was inadequate.
In my view there is no substance to this complaint. The Judge dealt with Mr Demeter’s voice identification evidence in some detail. It is pertinent to bear in mind that Mr Demeter gave evidence that as to Mr Domokos and Mr Virag he was previously acquainted with them, and had a reasonable knowledge of their voices. The Judge posed for the jury questions of the kind that one would have expected him to pose, drawing on the observations of the High Court in relation to visual identification in R v Domican (1992) 173 CLR 555 at 561-562. The Judge warned the jury that “the experience of the Court” showed that there were particular dangers with this kind of evidence. He warned them of the risk of mistake even by an honest witness. He went through a number of the calls raising issues in relation to individual calls, and reminding the jury of what was said. In the absence of the jury, counsel for Mr Domokos asked him to further direct the jury on the topic. He raised some of the mistakes or changes of mind by Mr Demeter. But the Judge had already dealt with this topic, and in any event that what he said on this in relation to voice identification was adequate. Counsel asked the Judge to re-emphasise the accomplice warning in relation to the voice identification evidence. The Judge declined to do so and, in my opinion, it was unnecessary for him to do so. As to some of the mistakes by Mr Demeter, he asked the Judge to put to the jury the question “how did he get it wrong? The Judge declined to do so, and there was no need for him to do that. He had raised the issue with the jury.
When the jury returned the Judge reminded them that Mr Demeter had made some errors in the voice identification, and told them to take that into account in assessing his reliability.
In short, in my opinion the Judge dealt adequately with this topic.
The Judge’s ruling that Mr Domokos had a case to answer on count 2 – Domokos Ground 3
Leave to appeal was refused on this ground by a single Judge. Mr Domokos requested that the application for leave be considered by the Full Court.
The argument is that no direct link was proved between Mr Domokos and the Angle Park parcel, addressed to the home of Ms Mica and received by her. The argument was that even if there was evidence from which the jury might conclude that Mr Domokos was aware that the Angle Park parcel had been dispatched and contained ecstasy, there was no basis upon which the jury could properly conclude that he was involved by some act of his in the importation of the ecstasy.
I would refuse leave to appeal on this ground. It has no prospect of success. The evidence before the jury provided a firm basis for the jury to find, if so minded, that Mr Domokos was involved in sending money overseas with which to obtain drugs to be brought into Australia, and that while overseas he was actively involved in making arrangements for the sending of drugs to Mr Demeter’s address and to Ms Mica’s address. While the case against Mr Domokos in relation to count 2 was a circumstantial one, it was a strong case.
The directions on the elements of the offence – Virag Ground 1 and Mica Ground 7
Counsel for Mr Virag and for Ms Mica submit that the Judge’s directions on the elements of the offence were inadequate. The complaint by Mr Stretton, counsel for Mr Virag, relates to the requirement that Mr Virag was knowingly involved in, or took part in, the importation of the ecstasy. The complaint by Mr Birchall, counsel for Ms Mica, is that the Judge failed to identify correctly the elements of the offence.
I deal first with the complaint by Mr Stretton.
Early in the summing up the Judge gave the jury a direction in general terms as to the elements of the offence. Mr Stretton makes no complaint about the direction. The first element was that MDMA was imported into Australia. The Judge referred the jury to evidence which established beyond doubt that that had happened. The second element was that MDMA is a narcotic substance. The Judge told the jury that that had been proved. The third element, the one in issue, was that the accused was knowingly concerned in the importation. The Judge said this was the real issue with respect to each accused. As to this element, the Judge said:
For the purpose of an accused being knowingly concerned with an importation the Crown must prove that the accused in question was aware of the plan to import a narcotic substance and also intentionally did some specific act either to bring about or at least facilitate the importation. In other words to be concerned in the offence means to do something which involves a practical connection or involvement in the importation.
Mere knowledge of the importation in question is not sufficient. An accused must be knowingly concerned in the importation, as I have explained that expression to you. An accused must be proved to be implicated or involved in the sense of having something to do with the importation.
As can be seen, there are two main aspects to this element. They are knowledge of the plan to import ecstasy, or knowledge that it had been imported, and performing some act that assisted with the process of importation.
The Judge gave the jury a copy of his directions as to the elements of the offence.
After some further directions the Judge turned to the prosecution case against each accused.
The Judge summarised the things that the prosecutor submitted Mr Domokos had done that involved him in the importation, and said that proof of any one of these things was sufficient to convict Mr Domokos. True, in this passage the Judge did not specifically refer to Mr Domokos being aware of a plan to import ecstasy, but the things that the prosecution alleged he had done were all part of such a plan. In any event, the Judge immediately turned to count 2. He again itemised the things the prosecution alleged Mr Domokos had done, and told the jury that they could only convict Mr Domokos if satisfied of one of these things and if satisfied “that all of the matters that I have indicated to you in the direction in explanation of count 2 are present”. The Judge told the jury that the elements of the offence were the same for count 1 and count 2. This was, clearly enough, a reference to those elements as a whole, and included the reference to knowledge of a plan to import ecstasy. Although this part of the direction is said to have sown the seeds of a misdirection, I disagree. Having regard to the role of Mr Domokos, and to the fact that he travelled overseas and was said to be the main organiser, and having regard to what the jury said, I am satisfied that the jury was sufficiently reminded that proof of the third element required proof that Mr Domokos was aware of a plan to import ecstasy, or that it had been imported.
The Judge then turned to the case against Mr Virag. He said that the prosecution had to satisfy the jury of one of two things in relation to the third element. They were:
iOne, he travelled to Waikerie along with Mr Domokos, and others, for the purpose of providing assistance, if required, to collect the parcel containing the illicit drugs.
iTwo, he attended at 5 Dunning Street, Waikerie, along with Mr Domokos, to provide assistance, if required, in the collection of the parcel containing the illicit drugs.
He immediately turned to the case against Ms Mica. As to her, he said the third element required proof of one of the following:
(1)pursuant to a prior arrangement she was standing by to receive a delivery knowing it contained illicit drugs;
(2)she in fact took possession of the parcels when they were delivered and retained possession of them knowing that they contained illicit drugs imported from overseas.
Taking the direction in relation to Mr Virag, I agree that, standing alone, it amounts to a misdirection. There is no reference to Mr Virag being aware of a plan to import ecstasy, or that ecstasy had been imported. It could be a direction that invited the jury to find nothing more than that Mr Virag was involved in the handling of illicit drugs.
But the direction has to be seen in the context of the general directions, of which the jury had a copy, and the references in relation to Mr Domokos and Ms Mica to importation from overseas. It also has to be understood as focussing on what were the main factual issues in the case.
I am satisfied that any doubts about the sufficiency of the direction are put to rest by other parts of the summing up.
The Judge went on to consider the prosecution case in some detail, and to canvass the various contentions by prosecution and defence about the evidence. When doing so in relation to Mr Virag, he reminded them that they had to be satisfied that he went to Waikerie to help collect the parcel, and added that a finding of guilt was “subject to you being satisfied beyond reasonable doubt that the importation process was ongoing as I explained to you”. When canvassing the evidence in relation to Mr Virag, there were a number of references in relation to the transfer of money and other acts that had an overseas connection. In relation to the Marinescu and Roberts parcels he reminded them that they had to be satisfied that the source of these parcels was from overseas, and that Mr Virag was involved in the importations.
When he came to the case against Ms Mica, he reminded the jury specifically that they had to be satisfied that the parcel she received came from overseas, and that she knew about it. A little later he added that they had to be satisfied that “she was aware of the plan to import the illicit drugs”.
Taking these directions as a whole, I am satisfied that the jury was adequately directed in relation to the requirement that Mr Virag be aware of a plan to import ecstasy, or that the ecstasy the subject of the relevant parcel had been imported. It would have been better if the Judge had made specific reference to this requirement, but it was correctly identified in his general directions and in the extract from his directions that he gave to the jury, and there were sufficient references to this aspect of the charge in various parts of the Judge’s summing up.
I do not accept that this complaint is made out.
Mr Birchall submits that the Judge’s error lay in reducing the elements to three. He argues that there were four elements. What the Judge treated as the first element should have been split into two. They were that the packages or packages were imported into Australia, and secondly that the packages or packages contained ecstasy. I cannot see what difference it would have made if the Judge had directed the jury in those terms. In my view the Judge was not obliged to so direct the jury. This ground of appeal fails.
The Judge’s refusal to order that Ms Mica be tried separately - Mica Ground 1
Leave to appeal on this ground was refused by a single judge. Ms Mica has requested that her application for leave to appeal be considered by this Court.
The relevant principles are well established. There are strong grounds in the public interest, and in the interests of the administration of justice, for persons who are jointly charged being tried together, and for the trial before the one jury of separate counts that are properly joined: see R v Collie (1991) 56 SASR 302 at 307-310, King CJ. The issue raised by this ground of appeal is to be considered as things stood at the end of the trial. The issue is not whether the Judge’s decision not to separate the trials was erroneous, but whether the joint trial has deprived Ms Mica of a fair trial and accordingly given rise to a miscarriage of justice: Collie at 310. In short, even if the decision to refuse to separate the trials is considered to be correct when made, it is nevertheless possible that in all the circumstances the joint trial might give rise to a miscarriage of justice.
The submission advanced by Mr Birchall in support of the application for leave has three broad bases. The first is that a good deal of evidence, and most of the evidence relating to count 1, was inadmissible against Ms Mica. The second is that some of the evidence led against other accused, which was inadmissible against Ms Mica, was prejudicial to her. The third is that the case against Ms Mica was substantially different from the case against the other accused.
In dealing with an earlier ground of appeal I summarised the evidence that was admissible against Ms Mica. It is not necessary to repeat that summary here. I agree that there was a substantial body of evidence that was not admissible against her. I agree that most of the evidence relevant to count 1 was inadmissible against her. However, some of that evidence was admissible against her. For example, all of the evidence of the money transfers was admissible against her, and so was the evidence, in various forms, of the association between Ms Mica and other accused and other persons involved in the money transfers.
I do not agree that the case against Ms Mica was substantially different from the case against the other accused, except in the sense that it involved different evidence. Each of the accused was alleged to be involved in an arrangement under which money was sent to persons in Europe, with a view to drugs being purchased or acquired in those places, and then sent to Australia and delivered to addresses with which the accused or associates of theirs were connected, but addressed to a person other than the resident.
I do not agree that the trial Judge failed to give adequate directions to the jury identifying the evidence that was admissible against Ms Mica, and the evidence that was not admissible against her. In my opinion those directions were sufficient. I have dealt with this issue above.
I do not agree that evidence was wrongly admitted that was unfairly prejudicial to Ms Mica, in the sense that it carried with it a prejudice that could not be remedied by directions given by the Judge. I have dealt with some aspects of this submission below.
In the end I consider that the issue that requires consideration is whether the substantial body of evidence relevant to count 1, that was inadmissible against Ms Mica, has given rise to a miscarriage of justice. I consider that issue in the light of the considerations that favour a joint trial, and in the light of the directions that the Judge gave to the jury. I must nevertheless consider whether there is a danger that the jury was unable to put that evidence out of its mind, or whether there is a danger that that evidence had such prejudicial potential that it could not be dealt with by directions by the Judge. In considering this issue, I have read the written submissions that Mr Birchall provided to the trial Judge, in support of his application for a separate trial, as well as considering the arguments advanced in his outline of submissions for the purposes of the appeal.
There is some force in the argument advanced by Mr Birchall. But I am satisfied that the jury would have been able to consider the case against Ms Mica separately. It can fairly be summarised as involving the money transfers, the Roberts parcel, the Angle Park parcel, the evidence of association with others involved and the evidence of the waybills and of the documents found at the home of Mr Domokos. I am satisfied that the members of the jury would have been able to put out of their minds the effect of the evidence that was not admissible against Ms Mica. It was possible to keep the two bodies of evidence apart. The Judge gave careful directions in this respect.
In the circumstances I would grant leave to appeal on this ground, but having done so would reject this ground of appeal.
The admissibility of evidence relating to money transfers by Mr Ivancu – Mica Ground 5
Evidence was led by the prosecution of transfers of money by Mr Ivancu (or someone pretending to be him) on 21 September 2000 ($4,559.10 to an address in Romania) and on 10 October 2000 ($1,975 to an address in Romania). In the case of the first of those transfers, the named recipient was a person to whom Ms Mica sent money on 12 September 2000.
Mr Ivancu was not charged or called as a witness.
There was evidence that Mr Ivancu knew Ms Mica and the other accused. He visited Ms Mica’s home during the execution of a search warrant on 14 October 2000. His address was one of those written on the piece of paper found at 38 Darley Road.
The links to Ms Mica and the other accused made the evidence of the money transfers admissible. The evidence of Mr Ivancu’s visit to Ms Mica’s home was admissible to support the link to Ms Mica. There is no reason why the Judge should have excluded any of this evidence.
There is no substance in Mr Birchall’s submission that the evidence was not admissible, or should have been excluded in the exercise of the Judge’s discretion.
The admissibility of the evidence of telephone call number 96 -

Mica Ground 6
The Judge admitted evidence of a telephone call on 13 October 2000 said to be between Ms Mica and another woman called Maria. He admitted it on the basis that the jury could find, from what was said, that it related to the sale of drugs. The recording of the telephone conversation was played to the jury, and the jury was given a transcript of the conversation.

More or less at the end of the evidence the Judge decided that he would direct the jury that they should not have regard to this telephone conversation. The Judge seems to have taken the view that the prosecution case was that Mr Domokos was going to be the ultimate recipient of the Angle Park parcel and the Waikerie parcel, and that it was inconsistent with this case for the prosecution to be suggesting that Ms Mica was in a position to sell some of the drugs contained in the Angle Park parcel, or another parcel. Counsel for Ms Mica told the Judge, when the Judge indicated this view, of his concern about the fact that this evidence had been before the jury for some weeks. He had opposed the admissibility of the evidence from the outset. In his summing up the Judge referred specifically to the call, and told the jury that he had concluded that even if they thought it was Ms Mica speaking, the conversation did not have “any relevance” to their deliberations, and said:
Accordingly, you must ignore the call when you come to deliberate with respect to the charge against her.
Mr Birchall complains that the Judge did not explain why they must ignore the call. He also complains that it appears that the jury had access to the recording of the call, because the recording was included with recordings of other telephone calls, and probably to the transcript of the telephone call, during the deliberations.
In my view the evidence was admissible, because it was relevant. The jury might have found that it was evidence of Ms Mica arranging to sell some of the drugs contained in the parcel that she received. Although it was admissible, it was open to the Judge, in the exercise of his discretion, to direct the jury as he did, although strictly, this being a question of the effect of the evidence, he should have told the jury that ultimately the issue was one for them. Viewed that way, the clear and firm direction that the Judge gave cannot give rise to any complaint by Ms Mica, because the likely result is that the jury paid no attention to a piece of admissible evidence. But the submission by Mr Birchall, in substance, was that what the Judge did amounted to him exercising his discretion to exclude the evidence on the basis that its prejudicial effect exceeded any probative value. That may be what the Judge had in mind, although, as I have said, the material remained in the possession of the jury. But even if this is the correct analysis, I consider that the clear and firm direction that the Judge gave was sufficient to avoid any miscarriage of justice occurring as a result of the jury having heard material that the Judge had decided to exclude, but having access to it during the deliberations. The telephone conversation was a discrete piece of evidence that, in my opinion, it was within the capacity of the jury to put out of their collective minds.
For those reasons, this ground of appeal is not made out.
Admissibility of evidence of three property receipts signed by Ms Mica

Mica Ground 10
Ms Mica signed three receipts when the police returned to her property that had been seized from her. Apparently this property was returned to her after she was arrested and had been released on bail.
A good deal later the police apparently realised that they needed samples of her writing to submit to a handwriting expert. They used the three receipts for this purpose.
Mr Birchall submits that the evidence based on the use of the receipts should have been excluded. He submits that the police could and should have obtained samples of Ms Mica’s handwriting by following the procedure prescribed by s 3ZJ of the Crimes Act 1914 (Cth). In brief, that provision enables a constable to obtain a handwriting sample from a person who is in custody if the person consents, or without consent on certain specified grounds. Mr Birchall submits that the police should have realised while Ms Mica was in custody that it would be desirable to obtain a handwriting sample from her, and should have followed the statutory procedure to obtain the sample. Not having done so, it was improper and unfair for them to use the property receipts.
There is no substance in this point. It was appropriate for the police to ask Ms Mica for a receipt when they returned property to her. There is no suggestion that they did so with a view to using the property receipts as handwriting samples. In any event, s 3ZJ is an aid to the police, not a fetter on their ability to obtain or use material that is otherwise available. There was no impropriety on the part of the police, there was no unfairness.
The Judge’s directions in relation to the evidence admissible against Ms Mica - Mica Ground 12
Mr Birchall submits that the Judge failed adequately to identify for the jury the evidence admissible against Ms Mica.
I do not agree. Over the course of about 11 pages of the summing up, the Judge carefully outlined the evidence relied on in relation to Ms Mica. From time to time he reminded them of arguments put to them by counsel. The directions were clear and thorough. Having done that, the Judge said:
I have endeavoured to identify for you the evidence in the trial which is relevant to the case against Ms Mica. As you know, she is charged with count 2. She is not charged with count 1, that relates to the Waikerie parcel. Therefore, none of the specific evidence relevant to that count is admissible or relevant to the case against her on count 2.
I have used the word “specific” to identify that evidence from the evidence which is common to both counts. I have identified that circumstantial evidence which is relevant to count 1 and to count 2, such as the money transfers and the evidence relating to Mr Domokos in Europe and the Marinescu parcel evidence.
Mr Birchall submits that this direction was not adequate. He says that the Judge did not tell the jury that evidence in respect of count 1 was not admissible against Ms Mica. He submits that what the Judge said did not adequately explain or identify the evidence relevant to count 1 that was not admissible on count 2, or the evidence that was common to both counts.
I disagree with each of these points. The Judge told the jury in clear terms that evidence that related only to count 1 was not admissible against Ms Mica on count 2. He drew a distinction between that evidence and circumstantial evidence that was relevant to both counts. He gave examples of the latter type of evidence. Having regard to the careful manner in which he outlined the evidence relevant to this count, and having regard to the balance of his directions, I am satisfied that the jury would have had no difficulty in understanding the distinction between evidence that was specific to count 1 and circumstantial evidence that was relevant to count 1 and count 2.
I would reject this ground of appeal.
A complaint that the verdicts are unsafe - Virag Ground 7, Mica Ground 13
I have reviewed the case as a whole, for the purpose of considering these grounds.
I deal first with the complaint by Mr Stretton on behalf of Mr Virag. I proceed on the basis that the complaint that the verdict is unsafe and unsatisfactory is a complaint that the verdict is unreasonable for the purposes of s 353(1) of the Criminal Law Consolidation Act 1935 (SA), meaning that in the opinion of this Court the jury ought to have experienced a reasonable doubt. Another way of putting this ground is that it requires the court to be satisfied that it was not open to the jury, on the evidence before it, to be satisfied beyond reasonable doubt that the accused was guilty: See M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439, and Gipp v The Queen (1998) 194 CLR 106.
As to count 1, there was evidence on which the jury could properly be satisfied beyond reasonable doubt of Mr Virag’s guilt. First, the fact that Mr Virag travelled to Waikerie with Mr Domokos and others. Second, the money transfers by Mr Virag, if the jury were satisfied they were made by him. Third, the added significance that those money transfers acquired from the other money transfers, if the jury were satisfied that those other money transfers were made by associates of Mr Virag. Fourth, evidence from telephone intercepts, although I agree that this did not amount to much. Fifth, the association between Mr Virag and Mr Domokos in particular, and between Mr Virag and the other accused and the others involved in money transfers. Sixth, the finding of the copy Waybills at the house Mr Virag occupied with Mr Domokos. Seventh, and linked to that, the evidence of the note with the addresses written on it, and of the delivery of the Marinescu and Roberts parcels. Eighth, the use by Mr Virag of Mr Domokos’ mobile telephone.
The case was wholly circumstantial. I agree that the case against Mr Domokos was stronger. But in my opinion it was open to the jury to be satisfied beyond reasonable doubt on the basis of the evidence that I have outlined.
I turn to the complaint by Ms Mica. My reasons reflect conclusions that I have reached on other grounds that are dealt with above.
I summarise the case against Ms Mica. First, there were the money transfers in her name, if the jury was satisfied they were sent by her. Second, there was the added significance that they assume when considered in the context of money transfers by other persons with whom Ms Mica was associated, if the jury was satisfied those transfers were made by those persons. Third, there was the receipt of the parcel addressed to “Petite Gerard”, and what Ms Mica said about that person when she received the parcel. Fourth, the explanation that she later offered to the police, which might have seemed unpersuasive. Fifth, there was Ms Mica’s association with the other accused and other persons involved in the course of conduct, and especially her association with Mr Domokos. Sixth, there was the evidence as to the delivery of the Roberts parcel. Seventh, there was the evidence as to the finding of the Waybill at the house occupied by Mr Domokos and Mr Virag, and the finding of the note with the addresses on it, including her address.
I am not persuaded that it was not open to the jury to be satisfied of her guilt beyond reasonable doubt on the basis of this evidence. To some extent Mr Birchall’s submissions were based on criticisms that he made of evidence to which I have referred, and evidence dealt with above. They were matters for the jury. They do not establish that the evidence that I have outlined was not capable of sustaining the conclusion of guilt beyond reasonable doubt. To some extent Mr Birchall’s submissions rely also on matters said to support his submission to the jury that the case was not made out. They also were matters for the jury to decide, going only to the weight of the evidence.
This ground of appeal is not made out.
Conclusion
I would refuse leave to appeal to Mr Domokos on ground 3. I would dismiss the appeal by Mr Domokos against his convictions.
I would dismiss the appeal by Mr Virag against his conviction.
I would grant leave to appeal to Ms Mica on ground 1 of her grounds of appeal, relating to the refusal of the trial Judge to order separate trials. Having done so, I would dismiss Ms Mica’s appeal against her conviction.
PERRY J: I agree with the orders proposed by the Chief Justice and with his reasons.
One of the major arguments of the appellants centred on their attack on the reception at the trial of the evidence as to the Marinescu and Roberts parcels.
I agree with the Chief Justice that evidence of the circumstances relating to the collection of the Marinescu parcel and the attempted delivery of the Roberts parcels was admissible as tending towards proof that the accused and others were participating in a scheme involving the importation of drugs in parcels addressed to fictitious persons at real addresses, being addresses with which the appellants were connected.
I further agree that there was no error in the manner in which the trial judge directed the jury with respect to that evidence. His directions were, if anything, unduly favourable to the appellants.
SULAN J: I agree that the appeals should be dismissed. I agree with the reasons of the Chief Justice and the orders he proposes.