RISTEVSKI v R [2007] NSWCCA 87

New South Wales Court of Criminal Appeal

CITATION: RISTEVSKI v R [2007] NSWCCA 87

HEARING DATE(S): 14 February 2007

JUDGMENT DATE: 2 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Bell J at 37; Howie J at 38

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - supply prohibited drug - cocaine - flee to escape arrest - running away from police with drugs - evidence of flight - directions to jury - whether trial judge failed to give directions on evidence of flight - whether flight was evidence of consciousness of guilt

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999

CASES CITED: Edwards v The Queen (1993) 178 CLR 193 R v Cook [2004] NSWCCA 52

PARTIES: Saso Ristevski (Appl) The Crown

FILE NUMBER(S): CCA 2006/2529

COUNSEL: G Scragg (Appl) V Lydiard (Crown)

SOLICITORS: John Bettens Lawyers (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0332

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 12 January 2005

IN THE COURT OF CRIMINAL APPEAL 2006/2529

McCLELLAN CJ at CL BELL J HOWIE J

MONDAY 2 APRIL 2007 RISTEVSKI, Saso v R Judgment 1 McCLELLAN CJ at CL: The appellant was tried and convicted upon an indictment which contained one count in the following terms: "On 8 January 2004 at Sydney in the State of New South Wales, supplied a prohibited drug, namely, cocaine, in an amount of 500.3 grams, being an amount not less than the commercial quantity for that drug." 2 The charge was laid pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is a term of imprisonment for twenty years or a fine of $385,000 or both. The offence is subject to s 54B of the Crimes (Sentencing Procedure) Act 1999. The standard non-parole period for the offence is one of ten years. 3 The appellant was sentenced to a non-parole period of six years and six months with a further term of three years. He now appeals against his conviction on the grounds that the trial judge erred "in failing to give directions on the evidence of flight." An application was also filed for leave to appeal against the sentence. However, this was not supported by any submissions and it is unnecessary to consider that matter further.

The facts 4 In January 2004 the police were carrying out an investigation in the Wollongong area and had an intercept in place on the mobile telephone number of Goran Nikolovski. Conversations which were intercepted revealed that Nikolovski was involved in the drug trade with persons other than the appellant. One of the persons he was dealing with was a person called Zen. The intercepted calls indicated that Nikolovski was negotiating the purchase of cocaine from Zen. 5 It was accepted at the trial that the cocaine the subject of the indictment had come from Zen. However, there was a significant issue as to whether, as the Crown alleged, Nikolovski was acting as a broker between the appellant and Zen. The Crown case was that the cocaine which was recovered had been purchased by the appellant. The appellant's case was that he had nothing to do with the transaction between Nikolovski and Zen and that his only role was as a courier for Nikolovski. He gave evidence to this effect. 6 Although many phone calls between Nikolovski and the appellant were recorded, the Crown alleged that only one of them revealed a conversation about drugs. The call was made on 8 January 2004 when the appellant and Nikolovski spoke of "going for a swim" and taking "sunscreen" and a "towel." It was the Crown case that going "for a swim" was code for going to Sydney and "sunscreen" was the taking of protection in the person of Marcio Francisco. The reference to "towel" was said to be a reference to money. 7 When he gave evidence the appellant admitted that the code for going to Sydney to get the drugs was "going for a swim." He denied that when he spoke of bringing "sunscreen" and a "towel" he was referring to protection and money but said he was using those words to give coded reference to "swim" more credence in case someone was listening to his conversation. 8 There was controversy in relation to other of the phone calls. In a phone call at 4.58 pm on 7 January 2004 between Nikolovski and Zen, Nikolovski said he was 95% sure he wanted "it" and he was going to get Zen to go half-way. This, the appellant said, showed that Nikolovski owned the cocaine and that his role was merely as a courier. 9 On 8 January 2004 the police were conducting surveillance in the Wollongong area. At about 7.35 pm they observed a blue Subaru motor vehicle travelling north on Mt Ousley Road. The appellant was driving the vehicle and had a passenger, Marcio Francisco. At about 7.45 pm a green Holden Commodore was also observed travelling north. Nikolovski was driving this vehicle. 10 The police followed the vehicles to the Ultimo area in Sydney where the Commodore parked on Ultimo Road facing north. The Subaru parked on Ultimo Road facing south. Nikolovski got out of his vehicle and walked across the road to the appellant and Marcio Francisco. 11 At about 8.58 pm the three men were seen walking together towards the Market City complex. At about 9.03 pm the appellant and Francisco were seen outside the 7-Eleven store at the intersection of Quay Street and Ultimo Road. At about 9.06 pm Nikolovski was seen with an Asian male person, Zen, near the Market City Tavern. Both men appeared to be making and receiving calls on their mobile phones. At about 9.20 pm the appellant was seen to return to the Subaru and obtain a white hooded jumper, which he put on and a black "bumbag" which he placed diagonally across his back. 12 At about 9.23 pm the appellant, Nikolovski and Zen met in the Market City Tavern. They went from there to the 19th level of the Peak Apartments building in Haymarket. They were together in a unit on the 19th level for about 2 hours. Francisco remained outside, walking around the Haymarket area. The appellant gave evidence that during the time that he was in the Peak Apartments building he was not party to any drug transaction. The appellant and Nikolovski left the unit together. The appellant said that on leaving the unit he was given a General Pants Co plastic bag by Nikolovski. They then met up with Francisco and all three returned to the Subaru. 13 The appellant said when they got to the car Nikolovski asked him to get the money from the car. The appellant said he put the General Pants bag on the front driver's seat and reached into the back and retrieved the bag containing the money – a Hugo Boss bag. He said that Nikolovski emptied the contents of the General Pants bag onto the front seat. The appellant said that he then saw a blue shopping bag and within that bag he could see a red bag. He said that he also saw a set of scales and white gloves which he said had come from the General Pants bag. He said that Nikolovski then took the money from the Hugo Boss bag and filled the General Pants bag with that money. Nikolovski allegedly told the appellant to take the package to Wollongong and he would contact him later to pick it up. Nikolovski said he was going to stay in Sydney. 14 The appellant alleged that Nikolovski told him there was still money in the Hugo Boss bag and the appellant was to take the scales to Wollongong and throw out the gloves. It was the defence contention that Nikolovski left with the bag of money to pay Zen for the cocaine. 15 The appellant then placed himself in the driver's seat with Francisco in the passenger seat of the Subaru. Nikolovski left the area and returned to the Peak Apartments carrying a plastic bag. The appellant said he put the Hugo Boss bag in the back seat, the package under the driver's seat, the scales in the glove box and passed the gloves to Francisco and asked him to "chuck them out." 16 The Subaru was subsequently pulled over in the Haymarket area. The police told the appellant that they had information that there were drugs in the car and checks needed to be done. The appellant gave his licence and the car keys to the police. Whilst the police were conducting checks on the vehicle the appellant and Francisco ran from the car. The appellant took the package he had put under his seat with him. 17 The appellant was subsequently apprehended. Whilst running from the car he threw a bag under a red Mercedes motor vehicle. That bag was later found to contain cocaine. It had the words "Red Gold Riven, Little Hay Street" written on the outside. The appellant said he did not know what type of drug was in the package, nor its weight. He claimed that the drugs belonged to Nikolovski. 18 When the Subaru was searched $6,000 was found inside the Hugo Boss bag. The scales and gloves were found to contain traces of cocaine. The appellant's mobile phone was found in the "bum bag" he was wearing. It also revealed traces of cocaine. The appellant said he did not know in what circumstances his phone came into contact with cocaine. The cocaine was found to weigh 500.3 grams with a purity of 83.5%. 19 Nikolovski was arrested that evening. He had his mobile phone with him. Apparently it rang a number of times and the name "Zen" was displayed as the caller.

The appellant's explanation for running away 20 At the appellant's trial Const Molloy gave evidence of pursuing the appellant. He said he saw him throw a plastic bag underneath a red Mercedes following which he tackled the appellant and brought him to the ground. When he gave evidence the appellant sought to explain why he had run from the car. The following exchange occurred; "Q. So why were you worried, what were you worried about? A. Well I knew I had the drugs in the car and the officer is coming to the car and he said to me he's going to search the car for drugs and I was worried that I was going to be caught … Q. So you ran from the car, grabbed the bag, is that right? A. Yes I grabbed the package from underneath the car and I'm pretty sure I put it into my right hand. I stepped out of the car and just started running straight down. Q. Why did you take the drugs with you, why didn't you just leave them in the car? A. Well the officer had my licence and he had the keys to the car and I thought if I left them there and I ran without them then its going to come back to me anyway and I thought if I run with them and I get away from the police, I'm obviously not going to get caught." 21 When cross-examined the following exchange occurred: "Q. So you ran away from the police, were you trying to escape from them, is that right? A. Yes. Q. You were trying to avoid arrest? A. Yes. Q. You were hoping to be able to get away and give the drugs to Mr Nikolovski is that what you say? A. Yes." 22 Later he said: "Q. Why didn't you leave the package behind? A. I didn't leave the package behind because if I had run and left the package behind, I knew that the officer had my licence and he knew who I was so like he put one and one together I've left the drugs there in the car and they're going to say they're mine." 23 When addressing the jury, defence counsel referred to this evidence and submitted the following: "There is the question of running away and the flight. The Crown suggests you can look at that to assist his case on that beyond a reasonable doubt, that you might think it makes a lot of sense when the police officer says I just want you to hang around a bit, there's some uniform people coming to search your car and we suspect you've got drugs and Mr Ristevski tells you well I've already given them the car keys and he's got my licence, they know exactly who I am. If I do the bolt and leave the drugs in the car, it's going to come back and haunt me, so I'm going to take my chances and run with it and hopefully not get caught with it. Is that so strange? Does that merely help prop up the Crown case up any more or not? I submit to you it doesn't diminish the defence one iota."

The summing up 24 There was no issue but that the drugs had been in the possession of the appellant. However, the nature of the appellant's possession, whether he had them for the purpose of supply or whether, as the appellant alleged, he merely held them for Mr Nikolovski was in issue. Before the appellant could be convicted the jury also had to be satisfied as to his knowledge of the quantity of the drugs. This latter issue featured significantly in the trial judge's summary of the Crown case. Relevant portions of her Honour's summary were as follows: "The Crown can satisfy you beyond reasonable doubt by showing you or demonstrating to you, or satisfying you that the accused actually knew or that the accused had a belief falling short of actual knowledge, or was aware of the likelihood in the sense that there was a significant or real chance that the amount of the prohibited drug consisted of in excess of 250 grams. Now what does the Crown submit to you to establish this intent or knowledge? (1) the long friendship with Mr Nikolovski; (2) the previous knowledge that Mr Nikolovski was a drug dealer; (3) the immediate knowledge when asked to participate in a deal with Mr Nikolovski that this involved drugs; (4) the acknowledgment that he was to be paid $1,000.00 in cash to drive the drugs back to Wollongong and the acknowledgement that this was a large amount of money; (5) the knowledge that Mr Nikolovski had been charged with drug offences at the time he agreed to participate in this drug deal; (6) the borrowing of a WRX which he acknowledged was a fast car; (7) the taking of Mr Francisco whom both the accused and Mr Nikolovski knew had a history of violence; (8) the fact that the accused carried the money that he knew was for the drug deal; (9) the fact that the accused was inside the Peak Apartments for about 2 hours while he knew the drug deal was going down; (10) the fact that he knew they were checking the drugs for purity and it was taking some time; (11) the fact that he carried what he knew were drugs out would have felt the weight of the package or packages; (12) the fact that in the Subaru Mr Nikolovski tipped the drugs out, revealing scales, a set of gloves and a 10 centimetre by 15 centimetre by 5 centimetre package that the accused must have known contained drugs; (13) the fact that the accused saw Mr Nikolovski fill a General Pants bag with money; (14) the fact that the accused did not worry when he was pulled over for a traffic violation but panicked when it became apparent the car was to be searched; (15) the fact that the accused ran away with the drugs clutched in his hand; (16) the fact that the accused violently resisted arrest; (17) the fact that the accused went up to the unit at all, if his job was simply to courier the drugs back to Wollongong he would wait outside … collect the package and drive back to Wollongong; (18) the fact that he had the money, the scales, the drugs, the gloves in the car he was driving; (19) the conversations with Mr Nikolovski and Zen, particularly the one where Nikolovski says 'I was going to get to go half way' 7/01/04 at 16/58/53; (20) the reference to your friend indicating that Mr Nikolovski was doing a deal for a friend whom the Crown submits is the accused; (21) the conversation about the towel, the sunscreen and the swim, this is acknowledged, the Crown submits to you, as a code or it was acknowledged as a code, the code comes from the accused the Crown says, he is arranging protection. He is arranging the money." … the defence contend that there is no evidence to prove beyond reasonable doubt that the accused had actual knowledge that the package of cocaine in his possession weighed 250 grams or more. I will remind you that there are three aspects of it, ladies and gentlemen of the jury, actual knowledge, belief falling short of actual knowledge or was aware of the likelihood in the sense that there was a significant or real chance that the drug consisted of a commercial quantity. The accused said in evidence that he did not pay attention to the weight of the package when he took possession of it from Mr Nikolovski. At the time the cocaine was in a Clip Lock bag, which was in the Riven bag which was in the blue plastic bag, all of which was in the General Pants bag as well were the cotton gloves and the scales. Mr Ristevski said he did not know and was not told what quantity of drugs were in the General Pants carry bag … The defence says there is no evidence that at any time the drugs were in the possession of the accused did he form the belief that the drugs weighed 250 grams or more. They of course say there is no evidence whatsoever … of actual knowledge. The defence says there is no evidence from which it can be established beyond reasonable doubt that the accused held the belief while the drugs were in his possession that the drugs weighed 250 grams or more. The defence says that you could not infer from the circumstances in which Mr Ritevski carried the bags from the apartment to the WRX and then from the WRX until he threw them under the Mercedes, a belief in the accused that he knew he had possession of 250 grams or more." 25 To this point in the summing-up no reference had been made to "flight." The circumstance of the appellant's attempt to escape from the police was identified as one matter in the chain of events giving rise to the offence. 26 The only reference by her Honour to "flight" was at a later point when her Honour was referring to the submission of defence counsel. Her Honour said: "Flight, or running way I suppose it would be described as, Mr King says there is a logical explanation for this and it does not in any way, Mr King submits to you, diminish what Mr Ristevski has said to you about what his role was and what he intended to do with the drugs." 27 There were no directions given in relation to the use if any which may be made of evidence of flight. Neither the Crown or counsel for the appellant sought such a direction.

The submissions 28 The appellant submitted that evidence of the appellant's flight was a significant matter in the Crown case. It was said, although this was denied by the Crown, that it had been advanced at the trial as evidence that the appellant was conscious of his guilt of the offence with which he was charged. It was submitted that her Honour should have given the jury a direction which contained the following elements: That before evidence of flight can be used as evidence of consciousness of guilt in support of the Crown case the jury must be satisfied that: 1. That accused did in fact flee (there was no issue on this point); 2. That the flight related to a material issue – here the issue was whether the appellant was in possession for the purpose of supply and not just mere possession; 3. He fled because he was in fact in possession for the purpose of supply – out of a consciousness of guilt; 4. The flight must be capable of indicating a consciousness of guilt specific to the offence charged. 29 It was submitted that the jury should have been warned that a person may flee for reasons other than guilt eg panic, or being wrongly accused. Furthermore, it was submitted that before the evidence could be used as consciousness of guilt, the jury must be satisfied beyond reasonable doubt that the appellant sought to flee to escape arrest for the offence with which he was charged.

Resolution of the appeal 30 The evidence of the appellant's attempt to escape from the police was admitted without objection. This was inevitable, because it formed part of the sequence of events which revealed the appellant's connection with the drugs he had discarded. For this reason the Crown, and her Honour when summarising the Crown case, included a reference to the fact that the appellant panicked when it became apparent that the car would be searched causing him to run away. To my mind it was not relied upon as evidence of consciousness of guilt of the offence as charged. It was merely an incident which, together with the other evidence, comprised the circumstances from which the jury could be satisfied of the appellant's guilt. 31 However, if it be accepted that it was relied upon as evidence of consciousness of guilt I do not believe that any directions beyond those which her Honour gave were required in this case. The necessity for a special direction comes from the risk that the jury may reason towards guilt when there may be other, and innocent, explanations for the accused's actions. The same position arises with lies told by an accused. Although many people would be aware of the possibility of an innocent explanation, unless reminded, there is a risk that the jury, being aware of the flight or lie, which is capable of having a powerful impact, may, without adequate reflection, convict an accused. 32 The relevant principles were summarised by Simpson J in R v Cook [2004] NSWCCA 52 at [50]: "Where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Those principles are stated in Edwards , Zoneff and Heyde . The conventional direction in relation to lies drawn from those, and other cases, requires a degree of adaptation in order to be accommodated to evidence of flight relied upon by the Crown for the same purpose. In particular, it is necessary, in my opinion, to draw attention to the circumstance that an accused person may behave in a way suggestive of a recognition of guilt for reasons other than such recognition of guilt – for example, fear of being unjustly accused. It is also necessary to point out to the jury that the consciousness must be a consciousness of guilt of the specific offence charged, and not, for example, of some other offence or some other discreditable conduct. The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct. 33 Only one qualification may be necessary to her Honour's remarks. Her Honour speaks of the jury being satisfied that the lie or flight points unequivocally to consciousness of guilt of the relevant offence. In Edwards v The Queen (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ emphasized that unless the alleged lie is the only evidence against an accused, or an indispensable link in the chain, it does not have to be proved beyond reasonable doubt (p 210). 34 In the present case it was plain that the appellant sought to escape in order to avoid apprehension for an offence relating to the drugs he had discarded. He said that he did so because he might be wrongly accused of possessing the drugs. His counsel reminded the jury of this explanation and her Honour, in summing up, also reminded them of it. No other explanation was offered. It follows that there was no reason for the trial judge to remind the jury that persons may have reasons to flee other than from a consciousness of guilt. The issue was properly placed before the jury. 35 I have indicated that no application was made for the trial judge to review the directions her Honour had given or provide any further directions. Rule 4 of the Criminal Appeal Rules applies. Although I am satisfied that there were no tactical reasons why this course was taken by defence counsel, it would seem that counsel had no reason to be concerned that the issue had not been appropriately placed before the jury. 36 In my opinion the appeal should be dismissed. 37 BELL J: I agree with McClellan CJ at CL. 38 HOWIE J: I agree with McClellan CJ at CL. **********

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