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Court of Criminal Appeal 1 November 2001

R v Doncev

[2001] NSWCCA 440

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION APPELLANT GAVE EVIDENCE AT TRIAL CROSS EXAMINED BY CROWN PROSECUTOR SUBSEQUENT SUBMISSION CONCERNING "LIES"

Citation: Doncev v R [2001] NSWCCA 440
Court: NSW Court of Criminal Appeal
Date: 1 November 2001
Judge(s): Spigelman CJ, Studdert J, Ireland AJ

Background

The appellant was convicted in the District Court of possessing a trafficable quantity of MDMA (ecstasy) imported into Australia in contravention of the Customs Act. The drugs had been concealed inside the covers of photograph albums sent from the Netherlands to a third party in Wodonga, who then drove the package to Sydney. Police surveillance observed the appellant in a car with a co-accused, handling the albums while their covers had been torn open and the tablets removed.

The appellant was arrested with over $7,000 in cash. In a post-arrest interview and again at trial, he denied any knowledge of the drugs or the albums, offering an innocent explanation for his presence in the vehicle. The Crown's case was that this account was a deliberate fabrication.

The appellant was sentenced to six years' imprisonment with a three-year non-parole period. He appealed against conviction only, ultimately pressing three grounds before the Court of Criminal Appeal.

  • Whether the trial judge erred in admitting evidence that the appellant had sent money to a co-accused in Amsterdam approximately three months before the drug shipment arrived
  • Whether the trial judge erred in refusing to allow further cross-examination of a prosecution witness
  • Whether the trial judge was required to direct the jury on "lies" told by the appellant, either as evidence of consciousness of guilt (following the High Court's approach in Edwards v The Queen) or by way of the more general direction discussed in Zoneff v The Queen

Decision

On the first ground, the court found no error in the trial judge's decision to admit the Western Union transfer records showing the appellant sent $8,000 to his co-accused in Amsterdam in the months before the importation. The judge had correctly weighed probative value against the risk of unfair prejudice under the Evidence Act, and the court was not persuaded that this balancing exercise miscarried.

On the second ground, the court rejected the submission that the trial judge had improperly curtailed cross-examination of the witness Suzanne Georgieve. The court found no appellable error in the ruling.

The third ground received the most detailed treatment. The Crown, in its closing address, characterised the appellant's account as a series of lies. The appellant argued this required either a full Edwards-style direction (warning the jury to be satisfied the lies were told because of consciousness of guilt before using them as evidence of that guilt) or at least a general Zoneff direction. The court disagreed. Drawing on its earlier decisions in R v GJH and R v Patterson, Studdert J held that where the Crown relies on an accused's false account not as a separate item of consciousness-of-guilt evidence, but as part of the overall contention that the accused's entire story was fabricated, no special lies direction is necessary. In such cases, the fabrication goes directly to the central issue of guilt rather than operating as a discrete strand of circumstantial evidence.

The court was satisfied that the trial judge had made abundantly clear to the jury that the onus of proof rested entirely with the Crown and that every element, including the appellant's knowledge, had to be proved beyond reasonable doubt. That, in the circumstances, was sufficient.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • A formal "lies direction" of the kind described in Edwards v The Queen is not required in every case where the Crown characterises an accused's evidence as lies. The direction is most relevant where lies are relied upon as a discrete circumstance pointing to consciousness of guilt.
  • Where the Crown's case is that the accused's entire account is a deliberate fabrication going directly to the essential issue of guilt, the fabrication is not a separate circumstantial indicator but part of the core factual contest, and no special direction is needed.
  • The Court of Criminal Appeal confirmed that a clear direction on the burden and standard of proof can be sufficient, in the appropriate case, to address concerns about how the jury may use a finding that the accused has lied.
  • In dismissing the appeal, the court applied and reinforced the approach taken in its earlier decisions in R v GJH and R v Patterson, providing further consistency in the post-Zoneff treatment of lies directions in NSW.
  • Admission of evidence showing financial dealings between an accused and a co-accused in the months before an importation is capable of being probative and does not automatically result in unfair prejudice sufficient to warrant exclusion.

Legislation and Cases Referenced

Legislation:
- Customs Act (s 233B(1)(c))
- Evidence Act (NSW)

Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Zoneff v The Queen (2000) 200 CLR 234
- R v GJH [2001] NSWCCA 128
- R v Patterson [2001] NSWCCA 316