REGINA v KARIMI [2002] NSWCCA 72

New South Wales Court of Criminal Appeal

CITATION : REGINA v KARIMI [2002] NSWCCA 72 FILE NUMBER(S) : CCA 60619/99 HEARING DATE(S) : 8 November 2001 JUDGMENT DATE : 20 March 2002

PARTIES : REGINA v TARIQUE KARIMA JUDGMENT OF : Mason P at 1; Hulme J at 28; Hidden J at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 90/11/3003 LOWER COURT JUDICIAL Stewart ADCJ OFFICER :

COUNSEL : Appellant: In person Crown: G Bellew SOLICITORS : Appellant: In person Crown: Commonwealth DPP CATCHWORDS : Appeal against conviction - error of law in admitting evidence of admissions - inconsisent evidence - equivocal evidence over existence of a video of interview - no case for an outright acquittal. DECISION : New trial ordered.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 60619/99 MASON P HULME J HIDDEN J

Wednesday 20 March 2002 REGINA v Tarique KARIMI

JUDGMENT 1 MASON P: In July 1999 the appellant was tried in the District Court before Stewart ADCJ and a jury on a charge of importing into Australia not less than the trafficable quantity of heroin (Customs Act 1901, s233B). The jury found a verdict of guilty and the appellant was convicted and sentenced to six years imprisonment to commence on 27 July 1999 with a four year non-parole period. 2 An notice of appeal against conviction that was filed in late 2000 contained four grounds namely: 1. The verdict of the tribunal was unsafe and unsatisfactory. 2. The trial judge committed an error of law in admitting evidence of admissions made by the defendant to customs officials in contravention of s23V(1) of the Commonwealth Crimes Act . 3. The trial judge erred in the exercise of his discretion in the manner in which a Weissensteiner direction was given to the jury. 4. The accused was deprived of a possible chance of acquittal because no positive evidence of good character was called by defence counsel. 3 In late 2000 and early to mid-2001 the appellant filed various sets of written submissions in aid of his appeal (Appeal Book 335-415). 4 It would appear that the appellant obtained a grant of Legal Aid which enabled him to retain counsel. On 17 October 2001 Mr Hamill of counsel filed a fresh outline of submissions, obviously intended to replace the earlier submissions, and in support of amended grounds of appeal dated 7 September 2001. The four new grounds complained in relation to evidentiary rulings and directions given by the trial judge. The grounds and the submissions in their support did not suggest that the Crown case was so deficient in evidence or law that an unconditional acquittal was appropriate. 5 The first of these recent grounds of appeal asserted that: The learned trial judge erred in his directions to the jury in relation to the Appellant's failure to give evidence at his trial. 6 The appellant complained of a portion of the summing up that appears to have conformed to the then leading authority Weissensteiner v The Queen (1993) 178 CLR 217. 7 The decision in Azzopardi v The Queen (2001) 179 ALR 349; (2001) 75 ALJR 931 has overturned the general understanding of the earlier law. 8 On 29 October 2001 counsel for the Crown filed brief submissions conceding that the directions (AB 272-3) were wrong; that the case is not apt for the application of the proviso; that ground 1 in the latest notice of appeal is made out; and that in consequence the conviction should be set aside and a new trial should be ordered. 9 The appeal was listed for hearing before the Court as presently constituted on 8 November 2001. 10 Early that morning the appellant terminated his counsel's retainer. Counsel appeared as a matter of courtesy and was excused. The appellant informed the Court that he wished to adopt the submissions of his former counsel in so far as they led to the setting aside of the conviction. However, he wished to contend for an acquittal. 11 He indicated that he wished to revive the grounds of appeal filed in 2000, and in particular wished to rely upon the contention that the verdict was "unsafe and unsatisfactory". He relied upon written submissions dated 29 June 2001 (AB 375ff). 12 All this took counsel for the Crown with as much surprise as the legally aided counsel previously retained by the appellant. The parties agreed to adjourn the hearing and to proceed on written submissions, subject to the Court being able to relist the matter for further oral argument should it think fit. 13 I would order a new trial. 14 The appellant was charged with importing a quantity of heroin being not less than the trafficable quantity, namely 118.4gms. 15 He had arrived at Sydney Airport on 2 December 1998 on a flight from Bangkok, after spending one week in Pakistan in the company of a juvenile male friend. Upon arrival he was directed by a customs officer to the barrier for a bag search. Customs Officer Houghton discovered in the bag a pair of white cotton track suit pants the appearance of which was said to be consistent with having a substance secreted into the fabric. The witness described the pants to be "discoloured and of a dirty appearance" and he said that they felt "sticky and stiff", 16 The appellant was questioned about the pants and his answers were tendered into evidence after a voir dire hearing. 17 An Ion scan test on the pants revealed a positive reading for heroin. The appellant was informed and asked whether he was carrying any narcotics. He denied it. He also denied that he had used any narcotics while away from Australia. He said he bought the pants in Pakistan on his current trip. He attributed their dirtiness to the pollution in Pakistan. 18 Three further narcotic field tests were conducted and, according to the evidence, they confirmed the presence of heroin. The appellant was then cautioned. At a subsequent electronically recorded interview he said that the pants had been given to him by a friend named Madhi. The Crown relied upon the discrepancy between the statement to officer Houghton that the appellant had bought the trousers and the statement in the record of interview. 19 After the interview the appellant was charged and released to bail. He returned to the police station later that day to collect his property. At that time a federal police officer searched his wallet and located a piece of paper containing the words "Ammonia solution strong" written in English together with some writing in a foreign language. Scientific evidence was given to the effect that strong ammonia solution was used in the process of extracting heroin from fabric. 20 There was considerable cross-examination about who had had access to the appellant's property since it was first seized. The defence case was that the appellant had no knowledge of the presence of the note in his wallet and he was unable to explain how it came to be there. The officers who had participated in the original body search said that they had not looked carefully through his wallet when the appellant was arrested. Some of them agreed that it would have been prudent to have done so. There was obviously a live issue for the jury as to whether they could be satisfied that the potentially incriminating note had been proved to have come from the appellant's possession. The trial judge gave directions about this issue, observing in passing that the customs officers were quite inexperienced. 21 The Crown called the appellant's travelling companion Mohamad Khalid. He was a 16 year old high school student and he had known the appellant for two to three years having met him at Blacktown. He had been invited by the appellant to accompany him to Pakistan. Mr Khalid said that there was an occasion in Pakistan when the appellant came back to the hotel with the pants, saying that he had got them from a friend. 22 In the written submissions dated 29 June 2001 the appellant contends that he was convicted as a result of various conspiracies involving members of the Australian Federal Police. He relies upon minor discrepancies between the written and oral evidence of particular officers and alleged discrepancies between the evidence of different officers. He also reiterates the case fought at trial based upon the officers' failure to discover the incriminating note when the appellant's property was first searched. 23 The trial judge observed to the jury that there was a hint of conspiracy to the effect that somebody put the incriminating note in the wallet, but this was never put squarely to any witness. 24 The appellant also raises an issue as to whether there was a videotape of his interview. No video was tendered and the evidence as to whether it was ever created was equivocal. The Crown case appears to be that none was created. The appellant's suggestion that a videotape would reveal whether agent Bittar was searching his wallet during the interview is quite speculative. 25 Other matters of a argumentative nature are raised in the submissions. In so describing them I do not intend to be dismissive. The simple point – and my conclusion in light of all of the matters raised – is that these were all matters for the jury to assess. The matters raised by the appellant do not persuade me that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 26 The other grounds of appeal raised in the original notice of appeal concern the admission of evidence and the competence of trial counsel. They do not establish a case for an outright acquittal. 27 As the Court indicated during argument, the appellant is free to apply for a no bill and to place before the Crown any additional evidence upon which he may wish to rely. 28 HULME J: I agree with Mason P. 29 HIDDEN J: I agree with Mason P. *****************