R v Domokos (No 4) - [2004] SADC 118

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOMOKOS & ORS (No 4)
Reasons for Rulings of His Honour Judge Robertson
16 June 2004
CRIMINAL LAW
VOIR DIRE
Applications to exclude from evidence, handwriting opinion evidence, items of evidence located in a search of premises and other items of evidence - circumstantial evidence - Public Policy discretion - General Unfairness discretions - applications refused.
Crimes Act 1914 (Cth) s3ZJ, referred to.
R v Burns and Others (No 4) (1999) 206 LSJS 99; Bunning v Cross (1977-78) 144 CLR 54; R v Lobban (2000) 77 SASR 24; R v Duke (1979) 22 SASR 46, applied.

R v DOMOKOS & ORS (No 4)
[2004] SADC 118
Judge Robertson
Criminal

The accused Ms Mica has brought a number of applications for exclusion of various items of evidence. Before embarking upon a consideration of each application it is necessary to make some general observations regarding the Crown case and to refer to some legal principles regarding circumstantial evidence. By so doing the path towards the resolution of many of the challenges to the items will become clearer.
It is the Crown case that the importation the subject of Count 2, which has been called the Angle Park delivery, is part of what was an ongoing joint enterprise to import drugs in which each of the accused were involved together with other persons who are not charged. The Crown case is that there were other importations of drugs as part of the enterprise earlier in the year 2000 and that the drugs delivered to Waikerie on 27 October 2000 (the subject of the charge in Count 1) was also a part of that enterprise.
A significant part of the Crown case against Ms Mica relies upon circumstantial evidence. Much of the circumstantial evidence is directed to Ms Mica’s state of knowledge regarding the illicit drugs contained in the parcels received by her on 13 October 2000. In dealing with the applications to exclude evidence made by Ms Mica it is, as an initial exercise, instructive to bear in mind the role that circumstantial evidence plays in a trial. Assistance in understanding that role is gained from some of the observations made by Olsson J in the decision of R v Burns and Others (No 4) (1999) 206 LSJS 99.
At page 112 Olsson J said:
“In my opinion, Mr Rice QC has demonstrated a proper basis for the submission of this proposed evidence. It is part of the circumstantial material which goes to make up the total picture of relevant relationships, events and payments. It also serves, once more, to illustrate the inherent invalidity of narrowly focusing on individual items of evidence in isolation when, in fact, they are a significant part of the total jigsaw puzzle of pertinent information”.
Furthermore, at page 113 his Honour said:
“Perhaps at the cost of doing so ad nauseam I repeat, the circumstantial evidentiary picture must be reviewed as a totality. It is both unprofitable and an illegitimate exercise to seek to dismember the overall picture into fragments and then argue that each of them is of little relevance or weight, by reason of its non specific nature and that it also gives rise to undue prejudice”.
Whilst Olsson J’s comments were directed to the circumstances with which he was confronted in Burns (No 4) they are also statements of general principle. Those observations are equally applicable to the circumstances present in this case.
I did not understand Mr Birchall to quarrel with the statements of general principle to which I have referred. It was his submission that many of the items of evidence which the Crown seek to lead do not link the accused with the circumstances of the charge in Count 2 or are so tenuous and remote that the evidence is not relevant and therefore not admissible or alternatively if admissible the probative value is so limited that it is outweighed by its prejudicial effect. He submitted that in some cases the inferences which the Crown seek to draw are speculative and would have an enormous prejudicial effect on the accused. I now turn to the specific challenges contained in the accused’s Rule 9 Notice.
The accused sought the exclusion from evidence of six money transfers in the name of the accused. The first three were all in February 2000, the first being on 7 February. These were all in typed form. There is no evidence that the signature on each of the forms is that of the accused. Each one has an address of Days Road Croydon Park as that of the sender. At the time the accused lived at 42 Cardigan Street, Angle Park. The money, the subject of each transfer, was directed to the same addressee who resided in Romania.
The remaining three transfers were in handwriting. Two of these transfers were dated 12 August 2000 and the other 12 September 2000. The August transfers were in the name of the accused Mica and addressed to the accused Domokos in Holland. The September transfer was in the name of Mica and was addressed to Rozalia Majoran in Romania. A handwriting expert, a Ms Birchall, has provided a statement in which she has offered the opinion that the signatures on each of these transfers are the same as the signatures on the specimen signature forms, which are receipts signed by Ms Mica. That opinion evidence is the subject of an application for exclusion. I will come to that issue shortly. Furthermore, with respect to the August transfer there is evidence that the identification of the sender who is recorded in the forms was required and a driver’s licence of Magdalena Mica was produced. The accused also admitted in her Record of Interview that she was the sender of the funds, the subject of the transfer dated 12 September 2000.
I turn for the moment to consider the application to exclude the handwriting identification evidence. The specimen signatures used by Ms Birchall for the purpose of her handwriting comparison was the signature of the accused on three property receipts given by the accused when Federal Agent Nankervis returned property to the accused. The property was seized by the Police when they searched the accused’s house on 14 October 2000.
Mr Birchall sought the exclusion of the specimen signature on the receipt forms in the exercise of the Public Policy discretion. If the specimen signatures are excluded then Ms Birchall has no basis upon which to provide her opinion regarding the signatures on the last three transfer forms. It was his submission that Federal Agent Nankervis acted improperly or unfairly in failing to inform the accused before she signed the receipts that the signatures could be used by the Police for handwriting evidence at some time in the future. I think it was Mr Birchall’s submission that Mr Nankervis’ failure to seek a specimen signature on the night he arrested the accused either adds to or highlights the improper or unfair conduct with respect to the three receipts.
Mr Birchall submitted that Mr Nankervis had in his possession on the night of the arrest, the transfer dated 12 September 2000. He asked some questions of the accused regarding the document. She admitted that she sent the money, the subject of the transfer. Mr Birchall submitted that the accused’s handwriting must have been well and truly in the Federal Agents’ mind on that night but he failed to ask the accused for a specimen. Mr Birchall submitted that if he had done so, he would have been obliged to give to the accused her rights under Section 3ZJ of the Crimes Act 1914 (Cwth). Those rights include an option for the accused to refuse to furnish a specimen signature.
Before I turn to consider this submission, it needs to be said that the evidence of Federal Agent Nankervis is that he did not know that the signatures on the receipts had been used as specimens for handwriting comparison. It was never in his mind that the signatures would be used for such a purpose. However, it was Mr Birchall’s submission that even if Mr Nankervis did not have in his mind that the signatures would be used as specimens he still should have advised the accused that there was always that possibility.
During his submissions Mr Birchall seemed to shift his focus on the question of improper or unfair conduct to that of the Director of Public Prosecution. He said that the handwriting opinion evidence had only been produced after the first trial. He submitted that it may be inferred that those controlling the prosecution in the first trial did not consider it fair to use the specimen signatures but there had been a change after that and the prosecution then proceeded to use the signatures.
I do not agree with Mr Birchall that the use of the signatures was improper or unfair conduct on the part of the Federal Police. It is not suggested that Mr Nankervis obtained the signatures by deception, having in mind that the signatures may be used some time later for comparison purposes. I do not agree that it was the duty of Mr Nankervis to advise the accused at the time of obtaining the signatures of the possibility of such use. Furthermore, I do not consider that there was any improper or unfair conduct by Mr Nankervis in not asking for specimen signatures from the accused on the night of her arrest.
Further, I do not agree that there has been any improper or unfair conduct by the Director of Public Prosecution in using after the first trial the signatures on the Receipts as specimens for handwriting comparison.
For the purpose of the Public Policy discretion it can only be conduct of the Police which is relevant to the exercise of the discretion as it is the police which obtained the evidence. As I said, I am not of the opinion that there has been any improper or unfair conduct on the part of the Police which would enliven the Public Policy discretion.
However, even if I am wrong, and the Public Policy discretion is enlivened, I would not exercise the discretion to exclude the evidence. In reaching that conclusion I have weighed up against each other the two competing public policy requirements (at page 74) and the relevant factors (at pages 78-80) identified in Bunning v Cross (1977-78) 144 CLR 54.
For the purpose of these observations I have assumed that the obtaining of the signatures and the use of them for handwriting comparison purposes was improper and unfair.
For completeness I should say that I do not consider that the evidence should be excluded in the exercise of the general unfairness discretion. (R v Lobban (2000) 77 SASR 24).
The application to exclude Ms Birchall’s handwriting opinion evidence is refused.
I now return to the question of whether the evidence of each money transfer is relevant. In my view each transfer is relevant in the sense they are items of circumstantial evidence which, if accepted, are of probative value. They each go to the issue of a joint enterprise and, in particular, that the offence the subject of the charge in Count 2 as part of that enterprise. The transfers are relevant to the issue of Ms Mica’s knowledge of the contents of the two parcels. Clearly, the transfers of August and September 2000 have greater weight than the transfers of February. With respect to the February transfer there is no handwriting evidence or identification evidence. The only evidence on the face of each of the February transfers which links them to the accused are that each has her name as the sender. However, the absence to evidence similar to that of the August transfers or the handwriting opinion evidence relating to the September transfer does not mean that they have no probative value. It is not evidence that should be considered in isolation. Other circumstantial evidence may need to also be considered. As Olsson J said in Burns (No 4) (at 103 “It is both unhelpful and unrealistic to seek to dissect out individual items and consider them in isolation”.
Having determined that the evidence is probative and therefore relevant, I am of the opinion that there is no prejudice in relation to the evidence which outweighs its probative value. With respect to the exercise of the discretion, the observations of King CJ in R v Duke (1979) 22 SASR 46 at 47-48 are apposite.
The application to exclude the money transfer evidence is refused.
I now turn to the application to exclude the evidence of two telephone intercepts made on 13 October 2000 and 17 October 2000 being call numbers 96 and 31 respectively.
The first telephone call is alleged to be between the accused and an unknown female called “Maria” on 13 October 2000. It is quite a rambling conversation. There is reference to the sale of the “thing” for cash. It is submitted that the contents of the telephone call were irrelevant. It is the Crown case that the two women are discussing the sale of all or part of the amphetamines which had been delivered some four hours earlier. Mr McEwen, Counsel for the Crown, submitted that it was open to the jury to infer, in the light of other evidence, that the women involved in the call were discussing the sale of the whole or part of the amphetamines delivered in the parcels. The Crown submits that it is relevant to the accused’s knowledge of the contents of the parcels.
I agree that the evidence is relevant in that it goes to the issue of the accused’s knowledge. The fact that there may be other explanations for the call does not make it irrelevant. Any prejudicial effect is outweighed by its probative value.
The application to exclude the evidence is refused.
I now turn to Call 31. This call is alleged to be between Ms Mica and the accused Domokos, briefly, then the telephone is handed over to the accused Majoran who carried on a conversation with the caller. It was made on 17 October 2000 whilst the accused Domokos was still overseas.
In my view, the call is relevant to the issue of association between the accused Mica, the accused Domokos and the accused Majoran. It is admissible. I am not prepared to exclude it in the exercise of the discretion.
The application to exclude is refused.
The next application for exclusion of the evidence concerning the collection of a parcel from the premises of a courier business operated by them, CMI in Adelaide. That company acted as an agent for UPS Courier Services. A copy of a UPS Waybill was located by the Police at 38 Darley Road, Paradise on 8 November 2000. That was the premises of the accused Virag. The accused Domokos seems to have had some association with the address. The copy Waybill appears to be a faxed copy. The Waybill is addressed to a person called “Ion Marinescu” of 42 Cardigan Street, Angle Park. The sender’s address is from the country Moldova. Ms Mica’s address is 42 Cardigan Street, Angle Park. It is the Crown case that “Ion Marinescu” is a fictitious person. The receipt form of CMI indicates that the parcel, the subject of the Waybill, was collected by a person calling herself “Magdalena” on 7 April 2000.
This document is, to some extent, associated with another document found at Darley Road which is also the subject of an application to exclude from evidence. This document was a sheet of paper containing four addresses, including 42 Cardigan Street, Angle Park. The document had written on it in Romanian:
“And when you send again please fax us when you sent it and the name”
It is the Crown case that this document was written by the accused Majoran.
Mr Birchall submitted that there is no evidence to indicate the contents of the parcel and that being the case it had no relevance. Furthermore, he submitted it was remote from the delivery in October 2000 and it was highly prejudicial because the Crown is to assert that it contained drugs.
It is the Crown case that the parcel connected to the Waybill contained illegal drugs. It also alleges that the other faxed copy of a Waybill located at Darley Road addressed to a “Alex Roberts” was also associated with a parcel which contained illegal drugs. The Crown alleges that Alex Roberts is a fictitious name.
The Crown is to present a circumstantial case for the purpose of proving that these Waybills were associated with parcels which contained illegal drugs. It says that the addresses on the sheet of paper and the note in Romanian is relevant to these parcels. The Crown says that the importation represented by the two Waybills were part of the joint ongoing enterprise involving the accused.
The Crown alleges that Ms Mica collected the “Marinescu” parcel the day after the Waybill was faxed. It is the Crown case that her involvement in this importation is relevant to her knowledge of the contents of the parcel the subject of Count 2.
The application to exclude the evidence relating to the collection of the UPS parcel and the sheet of paper with the four addresses demonstrates the point made by Olsson J in Burns and Others (No 4) that it is invalid to narrowly focus on items of evidence in isolation when they are a significant part of a total jigsaw.
In my opinion, the evidence of the receipt of the parcel and the sheet with four addresses on it are both relevant and admissible and should not be excluded in the exercise of the discretion.
The next application for exclusion is a note on a piece of paper found at Darley Road addressed to:
“Greag Smith
4/62 Sixth Avenue
Ascot Park”
The note referred to another not being able to do anything about a parcel at that moment because every place is closed. The note also contained a telephone number which was the mobile telephone number of Ms Mica.
It is the Crown case that the address is that of Stefan Ronkay and is one of the four addresses on one of the sheets of paper which I referred to a moment ago. The Crown alleges that Stefan Ronkay was associated with Ms Mica and the other accused.
The Crown says it is a relevant piece of circumstantial evidence going to establish that there was an ongoing enterprise regarding importation involving Ms Mica and others.
Once again, this application demonstrates the error in viewing an item of circumstantial evidence in isolation. In my view, the evidence is relevant and admissible and should not be excluded by the exercise of the discretion.
Finally, the accused Mica sought the exclusion of two overseas money transfers in the name of Antonica Ivancu. It was submitted that the evidence was irrelevant as Ivancu has not been charged. Furthermore, it was said that there was no evidence to link him to Ms Mica with regard to any criminal activity.
It is the Crown case that Ivancu is involved in the ongoing enterprise. The Crown points to evidence of his association with Ms Mica and other accused. The address of Mr Ivancu is one of the four addresses on the sheet of paper found at Darley Road, Paradise. The transfer of money overseas is part of the Crown case that it is being sent to fund expenditure for the acquisition of illegal drugs for the ongoing enterprise.
In my view, this is another piece of evidence relevant to the question of the drug importation enterprise of which the importation the subject of Count 2 is said to be one instance. The alleged enterprise is relevant to the state of knowledge of Ms Mica regarding the charge in Count 2. The evidence is relevant and admissible and should not be excluded in the exercise of the discretion.
The application for exclusion of evidence is refused.