R v Domokos

Case [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

  1. 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…

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R v Domokos [2005] SASC 266
Case
[2005] SASC 266
Decision Date

CaseChat Overview and Summary

The case of R v Domokos involves an appeal against convictions for the importation of a prohibited drug, MDMA, into Australia. The appellants, Mr Domokos, Mr Virag, and Ms Mica, were convicted in the District Court for their involvement in the importation of two parcels containing MDMA. The appeal raises issues relating to the admissibility of certain evidence, the directions given to the jury, and the safety of the verdicts. The appeal was heard by the High Court of Australia, which ultimately dismissed the appeals.

The legal issues before the court included the admissibility of evidence regarding earlier parcels with unknown contents, the reliability of a key prosecution witness who had suffered prior psychotic episodes, and the adequacy of the trial judge's directions to the jury. Additionally, the court considered whether the verdicts against two of the appellants were unsafe and unsatisfactory. The court also had to determine if the trial judge properly directed the jury in relation to the whole of the evidence against one appellant and if the trial judge's finding of a case to answer for another appellant was correct.

The court's reasoning focused on the relevance and prejudicial effect of the challenged evidence. The court held that evidence of earlier parcels and money transfers was relevant to establishing a scheme involving the importation of drugs. The court also found no error in the trial judge's directions to the jury, stating that the directions were, if anything, unduly favourable to the appellants. Regarding the safety of the verdicts, the court concluded that the verdicts against the appellants were safe and satisfactory, and there was no basis to order a new trial. Consequently, the appeals were dismissed.

The final orders of the court were to dismiss the appeals by Mr Domokos and Mr Virag against their convictions. Leave to appeal was granted to Ms Mica on the ground relating to the refusal of the trial judge to order separate trials, but her appeal against her conviction was also dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 2The 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 3The 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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