R v Maksimovic
[2007] VSCA 248
•30 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 359 of 2006
| THE QUEEN |
| v |
| DEJAN MAKSIMOVIC |
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JUDGES: | BUCHANAN and CHERNOV JJA and CURTAIN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 October 2007 | |
DATE OF JUDGMENT: | 30 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 248 | 1st Revision - 7 December 2007 |
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CRIMINAL LAW – Directions to jury – Adequacy – Importation of prohibited import – Crown case based solely on applicant being sole importer – Judge directed jury in terms that involvement of another person would be no defence to the applicant – Whether judge impermissibly expanded Crown case – Burden of proof – Use of term ‘not innocent’ – Whether judge diluted standard of proof – Evidence – Whether admission of evidence of applicant’s financial circumstances relevant – Whether risk of propensity reasoning – Whether admission of evidence productive of miscarriage of justice.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G F Meredith | Director of Public Prosecutions (Cth) |
| For the Applicant | Mr T Kassimatis | Patrick W Dwyer |
BUCHANAN JA:
I will ask Chernov JA to deliver the first judgment.
CHERNOV JA:
On 5 September 2006, the applicant, Dejan Maksimovic, who is now aged 33 years, was found guilty by a jury in the County Court of importing a prohibited import (cocaine) contrary to s 233B(1) of the Customs Act1901 (Cth) (‘the Act’). The applicant was also found guilty of attempting to possess a prohibited import, being cocaine. The applicant’s trial in relation to those offences commenced on 28 August 2006. The applicant had prior convictions for trafficking in cannabis and cultivating a narcotic plant and for theft. He also had prior convictions for road traffic offences. On 3 November 2006 the applicant was sentenced to a total effective sentence of seven years’ imprisonment with a non-parole period of four years. He now seeks leave to appeal on grounds which include grounds 1A and 3A, in respect of which an application was made for leave to add them to the existing grounds. The Court gave the applicant leave to argue the proposed grounds, deferring the resolution of the application for amendment until the determination of the application.
Before dealing with the grounds, it is necessary to set out briefly the background circumstances of the offending. The Crown case was that the applicant imported into Australia 794.4 grams of pure cocaine concealed in a parcel which arrived in Australia by post on 1 March 2005 from a person or person unknown from an address in Costa Rica, in Central America. The package was detected by customs officials at Melbourne Airport. It consisted of a brown cardboard box inside which were two boxes of commercially packaged chocolates. When opened by police, the boxes were found to contain white powder which, on later testing, was found to be cocaine. The authorities removed the white powder and replaced it with a substance that gave the appearance of cocaine. The powder taken from the ‘chocolate’ boxes weighed 1,002 grams and contained 794.4 grams of pure cocaine, having an estimated street value of between $130,000 and $400,000.
The parcel containing the cocaine was addressed to Sam Weatherhead, an acquaintance of the applicant, who lived in Brighton, a short distance from the applicant’s place of residence. Weatherhead, who gave evidence, said that he was unaware of the contents of the parcel. He claimed that he had no knowledge of it having been dispatched to him or that the applicant had arranged for it to be delivered to his address. On 3 March 2005 an Australian Federal Police officer, posing as an Australia Post contractor, arranged for a controlled delivery of the parcel to Weatherhead at his premises. On the day prior to this occurring the applicant had contacted Weatherhead and enquired whether a parcel had been delivered to him. He effectively said that it was meant for him and that he intended to collect it.
The Crown evidence was that, over an 80 minute period on the day of the controlled delivery, the applicant placed 17 calls to Weatherhead’s mobile telephone, two of which were answered by Weatherhead. After the last of these, and in cooperation with police, Weatherhead agreed to meet the applicant at a nearby pizza parlour in Brighton. He accompanied police to that location and identified the applicant to them as the intended recipient of the package. Shortly thereafter, the applicant was arrested and a search of his premises disclosed evidence of contact by him with Costa Rica by telephone and mail and his records showed recent large cash deposits to various credit card and loan accounts in his name to which reference will be made later.
The Crown case was that for some time prior to the importation the applicant had travelled to Costa Rica on several occasions and maintained personal and financial links with persons in that country. His credit card records showed financial transactions in Costa Rica during those trips and his telephone records showed numerous telephone calls made from his home and mobile telephones to four different telephone numbers in Costa Rica between December 2004 and February 2005, the last occurring the day before the importation in question. Two weeks before the parcel arrived on 1 March 2005, two international money transfers to Costa Rican recipients, each of A$7,000, were made on 14 and 15 February 2005 from agencies in Melbourne and Elwood. Both indicated that the sender was Sam Weatherhead and recorded that a (cancelled) passport belonging to Weatherhead, which had gone missing from his residence years earlier, had been used as proof of identification. Subsequent forensic examination of the money transfer forms showed the applicant’s fingerprint on one of the transfers and his writing on both of them.
The material seized by the police showed that the applicant’s only apparent income was a Carer’s Allowance from Centrelink, with no additional income declared in the four years prior to the importation. The records showed, however, that he paid approximately $31,000 in cash on six of his credit card and loan accounts between September 2004 and January 2005, and in early February 2005, three weeks before the illicit importation, he cashed $11,000 in gambling chips at Crown Casino and paid another $68,000 in cash into eight of his credit card and loan accounts. His financial records also showed the he deposited a Tattslotto cheque for $13,120 into his savings account on 10 September 2004 and withdrew $12,000 from it ten days later.
At trial, the applicant’s case was that the importer of the cocaine was Weatherhead and that it was Weatherhead who had transferred the $14,000 to Costa Rica. He claimed that he was being used as a dupe by Weatherhead. Both he and Weatherhead gave evidence and, in light of the jury’s verdict, it must be assumed that they rejected the applicant’s version of events.
I now turn to the grounds which were pressed by the applicant in support of his application, and do so broadly in the order in which they were argued.
Grounds 1 and proposed 1A: judge’s impermissible expansion of Crown’s case and failure to give accomplice warning
It was said under cover of ground 1 that in his charge the trial judge impermissibly expanded the Crown case by telling the jury that, even if they thought that Weatherhead was involved in the importation with the applicant, it would not be a defence to the charges against the applicant. Moreover, it was claimed under proposed ground 1A that, in light of that direction and the risk that the jury might consider complicity between the applicant and Weatherhead in the illicit importation, his Honour should have given the jury an accomplice warning.
It was argued for the applicant that the Crown case was narrow, namely, that Weatherhead was effectively the applicant’s innocent post box for his unlawful importation of the cocaine and that it went to the jury on the basis of Weatherhead’s evidence that he had nothing to do with the transaction. Counsel pointed out that the Crown did not contend or deal in its evidence with the possibility that Weatherhead was complicit in the applicant’s offending. Moreover, it was said, it was the defence case that Weatherhead had acted alone in the illicit importation and had used the applicant to set up a defence in the event that the importation was detected by the authorities. Thus, it was claimed that there was error in his Honour directing the jury in the following terms:
The only other proposition of law that you might be interested in – it has not arisen – it has not arisen in this case – in the evidence, nor from counsel’s addresses, but just in case it troubles any of you, I should simply say that if, for some reason … you [the jury] thought they [the accused and Weatherhead] were both in it, it would be no defence to the accused that the other guilty party [Weatherhead], if that is what you [the jury] were thinking, has not been charged or proceeded against.
It was pointed out that this came after both counsel had closed their cases and addresses. Counsel emphasised that the direction was said to have been on a matter of law and that, as the judge had told them earlier, they were bound to follow his directions on questions of law. Thus, it was implicit, it was said, that the jury were being told that they had to follow this particular direction. Consequently, the applicant argued, his Honour impermissibly expanded the Crown's case such that there was a risk that the jury might have considered joint involvement by the two protagonists in the illicit transaction, and this was done at a stage of the trial that deprived defence counsel of the opportunity of dealing with it. In the circumstances, it was argued, the judge undermined the defence case.
It seems to me, however, that although it was unnecessary for his Honour to make the impugned observation, it did not have the effect of impermissibly expanding the Crown case, for reasons which include the following. First, read in context, the impugned passage effectively explained to the jury why they did not have to be concerned with whether Weatherhead might have played any part in the importation. They were told essentially that it was irrelevant to the issues before them. Next, properly characterised, the passage merely emphasised that their function was to determine whether the applicant was the importer. At worst, I think, the impugned passage was surplusage.
Looking at the charge as a whole, it is obvious that the jury were directed that, before they could find the applicant guilty, they had to be satisfied beyond reasonable doubt that he was the importer. I note also that at the outset, and again after the impugned passage, his Honour told the jury in plain terms that neither side had put the case that Weatherhead and the applicant were acting jointly in the unlawful importation. In the circumstances, I consider that there is no real risk that the impugned part of the judge’s direction would have distracted the jury from considering only the two respective cases put to them by the Crown and the defence. Importantly, the applicant’s very experienced trial counsel, who was described by his Honour as providing the applicant with ‘excellent representation’ at the trial, did not take an exception to the impugned aspect of his Honour’s charge or seek leave to address the jury further to ensure that his Honour’s observation did not detract from the defence case. I have no doubt that if he considered that there was a risk of that occurring, he would have followed the usual course in that regard. The fact that he did not do so is, of course, not determinative of the issue, as the applicant's counsel before us pointed out – and in that context I refer particularly to R v Clarke & Johnstone.[1] Nevertheless, that counsel did not take an exception nor seek to re-address does cast doubt on the soundness of this ground. As I have said, the applicant’s trial counsel obviously saw no likelihood of miscarriage of justice by reason of the impugned observation by the trial judge.
[1][1986] VR 643, 661-2. See also Crampton v The Queen (2000) 206 CLR 161, 172-3 (Gleeson CJ), 217-8 (Hayne J); R v GAM [2003] VSCA 185 [10] (Winneke P).
Given that I have concluded that his Honour did not impermissibly expand the Crown case, there was no requirement for the judge to have given an accomplice warning. In any event, there is no basis for the giving of such a warning because the defence of joint liability was not raised by the applicant.
In the circumstances, I would refuse the application to add ground 1A and I would reject ground 1.
Grounds 3 and proposed 3A: irrelevant and prejudicial financial evidence
It was essentially contended under ground 3 and proposed ground 3A that his Honour wrongfully admitted evidence of the applicant’s financial affairs other than that relating to the two payments of $7,000 to which reference has been made. This evidence included receipt by the applicant of Centrelink payments from 1998 to 2005, his payment, three to four weeks before the importation, of approximately $70,000 off the debt on his credit cards and other loans and his alleged gambling at Crown Casino. The Crown relied on this evidence to show that the applicant was in receipt of greater income than merely from Centrelink payments and it was said by the Crown that the $70,000 was made available to the applicant because of his ‘cocaine arrangement with [his] Costa Rican colleagues’.
It was argued for the applicant that the Crown impermissibly placed before the jury unexplained receipt by him of over $100,000 and thus was effectively inviting them to engage in propensity reasoning. It should be noted, however, that the applicant’s financial position was put to the jury by consent of the applicant and at trial the Crown concentrated on the $70,000 received by him shortly before the illicit transaction as going both to his financial position and his involvement in the importation. I note for completeness that the impugned evidence showed that the funds that were available to the applicant did not come from any winnings at Crown Casino as he claimed.
In my view, the impugned evidence was relevant and admissible. An important contest between the parties was which of the applicant and Weatherhead paid the $14,000, seemingly for the cocaine; the Crown argued that it was the applicant and, as I have noted, he contended that it was Weatherhead. Thus, the capacity of the applicant to pay the money and hence his financial circumstances were relevant to the issue of who made the payments in question. It seems to me that the impugned evidence went to establish that the applicant had access to funds at or about the time of the payment of the telegraphic transfers and it also showed that the applicant had recourse to significant reserves of money other than what might be expected to be provided by his Centrelink payments and through his gambling. All this made it more likely that he would have paid the $14,000. It also pointed to there being a relationship between those funds, or at least part of them, and the cocaine importation. Furthermore, I consider that, contrary to the applicant’s claim before us, it was permissible for the Crown to cross-examine the applicant to seek to demonstrate the falsity of his claim that he had received $70,000 from the estate of a deceased uncle.
The applicant submitted, however, that even if the applicant's general financial position was relevant so that it was necessary to lead evidence of his financial dealings it was impermissible to lead it to the extent of over $100,000. It was suggested at one stage that if the Crown only intended to establish that the applicant had the capacity to pay the $14,000 in question, it should have been limited to leading evidence of the applicant's financial position to the extent of $20,000 or $30,000 or some such reasonable figure. But that would have been an extremely artificial approach to take and would not have obviated a potential dispute as to which $20,000 or $30,000 the Crown could properly have led in evidence. Be that as it may, it was appropriate for the Crown in this case to lead evidence of the applicant’s financial position and, as I have mentioned, this was done by consent. Thus I consider that the now impugned evidence was relevant and admissible and that any prejudice that may have flowed to the applicant by reason of its admission did not outweigh its probative value.
As to the claim that his Honour wrongly failed to give a propensity warning, I make two points. First, no such direction was sought by the applicant's trial counsel, and, as will become apparent, understandably so. Secondly, any propensity warning would not have advanced the applicant's case, which was based on the claim that the moneys in question were obtained by him in the course of lawful transactions. Any suggestion that the jury should not reason that it may have been the product of other drug dealings or uncharged acts would have put the applicant's case as to his source of money under greater scrutiny. It is unsurprising, therefore, that the applicant's experienced trial counsel did not seek such a direction.
In the circumstances, I consider that no miscarriage of justice arose by reason of the admission of the impugned evidence. It is apparent that the applicant’s experienced trial counsel must have concluded that the evidence was relevant and admissible and that there would not be any miscarriage of justice if it were admitted. After all, he agreed to it going in by consent and took no objection to the Crown’s cross-examination of the applicant to suggest that the $70,000 was related to the cocaine dealing. Importantly, the Crown had foreshadowed this aspect of its case in its opening, and not only was there no objection to the cross-examination that is now impugned but the applicant’s trial counsel dealt with it in his closing address.
In the circumstances, I would not grant leave to add ground 3A and I would reject ground 3.
Grounds 2 and 4: additional and aggregate of errors
It was next argued under cover of ground 2 that his Honour compounded the claimed errors to which reference has been made, or erred in any event, by charging the jury in terms that the Crown was required to establish to their satisfaction that the applicant was ‘not innocent’. By giving the jury such a direction, it was said, his Honour reduced or weakened the burden ordinarily borne by the Crown in a criminal trial, namely, to establish the offender’s guilt beyond reasonable doubt. It was pointed out that demonstrating that the applicant was not innocent fell far short of proving his guilt beyond reasonable doubt. It was argued that the error was so fundamental that it went to the root of the trial and caused a substantial miscarriage of justice.
In my view, however, looked at in context of the charge as a whole, his Honour’s use of the term ‘not innocent’ did not produce the miscarriage of justice for which the applicant contends. It seems to me that there is no realistic possibility that the jury would have understood his Honour’s use of those words as reducing the standard of proof or that they could convict the applicant merely by concluding that he was not innocent of the charges. It is obvious from the terms of his Honour’s charge that he used the impugned words as a synonym for ‘guilt’. Although the gloss on the standard direction as to the Crown’s burden and the standard of proof by reference to the words ‘not innocent’ should be eschewed, it cannot be said that in the circumstances of this case it may have caused the jury to convict the applicant on any basis other than their satisfaction of his guilt beyond reasonable doubt. His Honour emphasised the standard and burden of proof in usual terms on numerous occasions throughout his charge and in his preliminary directions to the jury at the outset of the trial so that, in the circumstances, I consider that there is nothing in ground 2.
Ground 4 alleges that, even if each of the claimed errors did not result in a substantial miscarriage of justice, the aggregation of them produced that result. Since I have concluded that his Honour made no relevant error as claimed by the applicant, this ground must also fail.
Conclusion
Consequently, and notwithstanding the arguments put by counsel for the applicant, I would dismiss the application.
BUCHANAN JA:
I agree.
CURTAIN AJA:
I agree.
BUCHANAN JA:
The orders of the Court will be -
Leave to add grounds 1A and 3A in the application for leave to appeal against conviction is refused.
The application for leave to appeal against conviction is dismissed.
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