R v Doncev - [2001] NSWCCA 440

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Doncev [2001] NSWCCA 440

FILE NUMBER(S):
60587/00

HEARING DATE(S): 24 October 2001

JUDGMENT DATE: 01/11/2001

PARTIES:
Regina v Kosta Doncev

JUDGMENT OF: Spigelman CJ Studdert J Ireland AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 96/11/0482

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
G.J. Bellew (Crown)
M. Thangaraj (Appellant)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown)
The Law Practice (Appellant)

CATCHWORDS:
Criminal law
appeal against conviction
appellant gave evidence at trial
cross examined by Crown Prosecutor
subsequent submission concerning "lies"
whether necessary for jury to be directed concerning "lies".

LEGISLATION CITED:
Customs Act
Evidence Act

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL
60587/00
SPIGELMAN CJ
STUDDERT J
IRELAND AJ
Thursday 1 November 2001
REGINA v KOSTA DONCEV
Judgment

SPIGELMAN CJ: I agree with Studdert J.
STUDDERT J: The appellant, Kosta Doncev, stood trial in August 2000 charged with an offence under s 233B(1)(c) of the Customs Act of having in his possession without reasonable excuse a quantity of 3,4 methylenedioxymethamphetamine (commonly known as ecstasy) which had been imported into Australia in contravention of the Act. The charge alleged a trafficable quantity of the drug was involved. The jury found the appellant guilty and he was sentenced to imprisonment for a period of six years with a non parole period of three years, and the sentence commenced on 31 August 2000.
The appellant appeals against his conviction; he does not seek leave to appeal against sentence should the appeal against conviction fail.
Before considering the various grounds of appeal, it is desirable to outline the evidence relied upon by the Crown.
Summary of the Crown case
On 23 November 1995 Federal police officers seized a parcel which had arrived in Australia addressed to “Victor Dimitrov, 35 Roadshow Drive, Wodonga, Australia.” The postmark on the package indicated it had been sent from The Netherlands some days previously. The package contained two photograph albums and close inspection disclosed that there were white tablets that had been hidden inside each of the front and the back covers of the albums. 1900 tablets were found. The nett weight of the tablets was 528.9 grams and analysis revealed that the pure ecstasy content was 159.8 grams.
The police removed all but 20.1 grams of the tablets, replacing the tablets removed with some inert substance and the package was then reassembled in preparation for a controlled delivery.
The package was delivered to Victor Dimitriyevich at his home in Wodonga. (This recipient stood trial with the appellant on a like charge to that faced by the appellant, but was acquitted by the jury.) Having received the package, Dimitriyevich put it in his car and set off to drive to Sydney. His movements, and subsequently those of a man named Dinic, and the movements of the appellant were observed by police officers who gave evidence at the trial. Upon arrival in Sydney, Dimitriyevich was observed with Dinic and another person at a restaurant in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Doncev

Details

AGLC: R v Doncev [2001] NSWCCA 440
Case: [2001] NSWCCA 440
Decision Date: 1 November 2001

CaseChat Overview and Summary

The appeal by Doncev against his conviction for drug trafficking charges was heard in the Court of Appeal of the Supreme Court of Victoria. The central issues in the appeal were whether the trial judge erred in admitting certain evidence, in refusing to allow further cross-examination, and in not directing the jury about the appellant's previous false statements. The appellant, who had previously denied knowledge of drugs and any involvement in their trafficking during police interviews and at trial, raised three grounds for appeal, which were ultimately narrowed down to the aforementioned three specific points.

The first ground of appeal challenged the admissibility of evidence relating to money transfers from the appellant to Petar Dinic. The appellant argued that this evidence was unfairly prejudicial and should have been excluded. However, the trial judge had already ruled on this matter before the trial, determining that the probative value of the evidence outweighed any prejudicial effect. The court upheld the trial judge's decision, finding no error in the admission of the money transfer evidence.

The second ground of appeal concerned the refusal of the trial judge to allow further cross-examination of Suzanne Georgieve, a witness for the prosecution. The appellant sought to impeach this witness by introducing evidence of previous inconsistent statements. The court found that the trial judge had acted within his discretion in limiting the cross-examination to prevent unnecessary prolongation of the trial and to avoid confusing the jury with peripheral issues.

The third ground of appeal focused on the trial judge's failure to direct the jury concerning the appellant's previous false statements. The appellant argued that the jury should have been alerted to his prior inconsistent statements during police interviews and at trial to assist them in assessing his credibility. However, the court held that such directions were not necessary, as the inconsistencies were adequately highlighted during the trial and the jury was free to consider the appellant's credibility in light of the evidence presented.

The court dismissed the appeal, finding no error in the trial judge's handling of the evidence, cross-examination, or jury directions. The conviction and sentence of the appellant were therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

An interview was conducted by the police with the appellant. In that interview the appellant denied seeing or looking at the photograph albums and denied any knowledge of the white tablets. He said he did not know Dinic’s surname, but he had met with him prior to arrest with the aim of going to see a person with whom Dinic had left some brochures of paintings which had been painted by a person named Suzie, who was described by the appellant as being his nephew’s girlfriend.The evidence of the appellant The appellant subsequently gave evidence at the trial. Just as he had denied in the interview conducted by the police following his arrest that he had seen or looked at the photograph albums whilst he was in the car, and as he had denied knowledge of the white tablets, the appellant in his evidence at the trial gave an account inviting the conclusion that he had not removed any tablets from any photograph albums. He said that he met with Dinic for the purpose of picking up “the photo” (AB 112). He said that he entered the car and observed that there were boxes and bottles of drink and a lock for the steering on the seat so he threw them on the back seat. The appellant denied that Dinic handed anything to him in the car.The grounds of appeal The grounds of appeal first filed were added to in a later document contained in the appeal book, which is undated but which appears at p 5 of the appeal book. Two further grounds were addressed in the appellant’s written submissions dated 12 October 2001. Then in a further document, received by the court on 23 October 2001, counsel for the appellant indicated that grounds 1, 3, 4, 5, 6 and 7 of the grounds referred to in the earlier written submissions of 12 October 2001 were not being pursued. In the result, counsel identified three remaining grounds upon which the appellant relied:(1)that his Honour erred in admitting evidence concerning the transfer of funds by the appellant overseas;(2)that his Honour erred in refusing to allow further cross examination by the appellant of a witness named Suzanne Georgieve;(3) that his Honour erred in failing to direct the jury as to lies. Those grounds were addressed in written and oral submissions. I will now consider each of these grounds in turn.Ground 1: The appellant has submitted that the trial judge erred in admitting evidence that the appellant sent money to the man Dinic in Amsterdam. An application was made before the trial for the exclusion of the evidence as to this but the appellant’s application was unsuccessful. The reasons of the trial judge for the ruling that he made appear in the appeal book at pp 7-9. In admitting the evidence, his Honour ruled that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant. The evidence in point was as follows: on 17 August 1995 the appellant sent to Petar Dinic in Amsterdam, Holland the sum of $6000. A record of this appeared in one of the exhibits at the trial in the form of a document entitled “Western Union Money Transfer”. Six days later there was a second transfer by the appellant to Petar Dinic, this time in the sum of $2000. Again the transfer was to Amsterdam, Holland and again there was a record of this in a document described as a “Western Union Money Transfer”.

Decision

Reasons for decision

SPIGELMAN CJ STUDDERT J

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ STUDDERT J

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