Regina v Promizio [2004] NSWCCA 75

Reported Decision : 142 A Crim R 592

New South Wales Court of Criminal Appeal

CITATION : Regina v Promizio [2004] NSWCCA 75 HEARING DATE(S) : 13/02/04 JUDGMENT DATE : 31 March 2004

JUDGMENT OF : Sully J at 1; James J at 2; Hulme J at 76 DECISION : Appeal against conviction dismissed.

CATCHWORDS : Criminal Law - conviction appeal - no legal representation at trial - Dietrich v The Queen LEGISLATION CITED : Customs Act CASES CITED : Craig v State of South Australia (1995) 184 CLR 163 Dietrich v The Queen (1992) 177 CLR 292 PARTIES : Regina v Alberto Promizio FILE NUMBER(S) : CCA 60344/2003 COUNSEL : MJ King - Crown BT Stratton QC - Appellant SOLICITORS : S O'Connor - Crown Ross Hill & Associates - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1091 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER :

15 IN THE COURT OF CRIMINAL APPEAL 60344/03

SULLY J JAMES.J HULME J

Wednesday 31 March 2004 REGINA v Alberto PROMIZIO

JUDGMENT 1 Sully J: I agree with James J. 2 James J: Alberto Juan Promizio has appealed against his conviction, after a trial in the District Court before his Honour Judge Finnane and a jury, on a charge under s 233 B (1)(b) of the Customs Act of importing into Australia on 26 August 2001 a quantity of cocaine being not less than the trafficable quantity. The trial of the appellant took place between 9 September 2002 and 20 September 2002. On 7 February 2003 Judge Finnane sentenced the appellant to a term of imprisonment of nine years with a non parole period of four and a half years, commencing on 26 August 2001, the date on which the offence had been committed and the appellant had been arrested. There is no application for leave to appeal against the sentence imposed by Judge Finnane. 3 The appellant was not legally represented at his trial and the only ground of appeal against conviction relates to his not having been legally represented at the trial. He was legally represented in part of the proceedings on sentence. On this appeal he has been represented by senior counsel. The Crown Case at the Trial 4 The Crown case at the trial, which the jury must have accepted and many parts of which were not controversial, can be briefly summarised as follows. 5 The appellant is a Spanish speaking Argentinian national who has little knowledge of English. On the morning of Sunday 26 August 2001 the appellant arrived at Sydney Airport on a flight from Argentina. The appellant had two pieces of baggage, a soft sided black "Gabbiano" brand bag and a hard sided, navy blue suitcase equipped with wheels, with a white marking on the suitcase reading "Clipper Club." In this judgment I will refer to the latter piece of baggage as "the suitcase." 6 Customs officers at Sydney Airport observed that there was a strong smell of glue emanating from within the suitcase, the suitcase appeared to be heavy compared to a normal suitcase of its size and the suitcase appeared to be excessively thick on one side of its base, so that, if the suitcase was not supported, it fell over on one side. A customs officer had a conversation with the appellant, which was tape recorded. 7 The suitcase was examined further by Federal police. When a section of plastic in the interior of the base of the suitcase was broken away, twelve packages were revealed. On later analysis, these packages were found to contain cocaine of about 50% purity, the total bulk weight being 1981.3 grams and the total weight of pure cocaine being 966.8 grams. 8 Later on 26 August 2001 the appellant was interviewed by an Australian Federal Police agent at the Australian Federal Police headquarters in Sydney, in an interview that was tape-recorded. A Spanish interpreter was present at the interview and translated the questions the appellant was asked and the appellant's answers to those questions. 9 In the interview the appellant said that the suitcase (which was referred to in the interview as "the bag") had been lent to him in Argentina by a man named Jorge Tomas or Thomas. The appellant was unsure whether this person's name was spelt "Tomas" or "Thomas"; I will refer to this person in this judgment as "Tomas." In answers in the interview the appellant said that Tomas had lent the appellant the suitcase, because the appellant did not have one; that he had known Tomas for six or seven months; that the suitcase had been empty when it was lent to him; that the suitcase had been given to him one day before his departure to Australia; that the clothes in the suitcase were his; that he had packed the suitcase himself; and that he had boarded the plane with the suitcase and his other bag and had put both pieces of baggage in an overhead compartment in the plane. The appellant said that he had come to Australia as a tourist but later in the interview said that his son had asked him to come to Australia to "have a look at the country," apparently for any employment opportunities for the son. 10 A scientific procedure known as an "Ionscan" was performed on the suitcase and on other objects which had been in the possession of the appellant when he arrived in Sydney. This procedure revealed the presence of cocaine residues on the handles of the suitcase, on a documents purse the appellant had and on the appellant's passport. At the trial an expert witness gave evidence that, in his opinion, because of the high readings for the presence of cocaine on the purse and the passport, the cocaine residues on the purse and on the passport could not have been transferred to the purse or the passport from the handles of the suitcase. In the witness's opinion, the purse and the passport had been contaminated with cocaine by being touched by a hand that was itself highly contaminated with cocaine. The Defence Case 11 In the interview at Australian Federal Police headquarters on 26 August 2001 the appellant said that he considered himself innocent and that he had been tricked. 12 At the trial, after the Crown prosecutor had concluded her opening address, the appellant, when asked by the trial judge if he wanted to say anything to the jury at that stage of the trial, said: "yes, that I am innocent. I can prove that I didn't know anything about that. …..I borrowed that bag and I not know what was in it and that I came here for another reason to look for work. …...I think that it might be a different bag, that somebody actually swapped the bags around because when I left the airport in Ezeiza Argentina I had no problems. 13 At the trial the appellant did not give evidence himself and did not call any witness. He did, however, make a closing address to the jury. 14 Although the appellant had said in his brief opening remarks to the jury, which I have already quoted, that he thought that there might have been a swapping of bags, it is clear that the appellant's case at the trial was, simply, that he did not know that the suitcase contained drugs. Any contention that the suitcase in which the drugs were found was not the appellant's suitcase and that the suitcase in which the drugs had been found had been substituted for the appellant's own bag, would have been contradicted by a number of the answers which the appellant had given when interviewed on 26 August 2001, including his answers that the suitcase in which the drugs had been found had been lent to him by Tomas, that he had packed the suitcase himself and that the clothes in the suitcase were his. 15 In his closing address to the jury at the trial the appellant repeated that the suitcase he had brought into Australia had been lent to him by Tomas and that the clothes in the suitcase were his. There was evidence of these matters, because the recording of the interview of the appellant on 26 August 2001 had been admitted into evidence in the Crown case. In his closing address the appellant sought to explain the strong smell of glue emanating from the suitcase by saying that he had recently changed the soles of a pair of shoes he had packed. History of the Criminal Proceedings Against the Appellant 16 As I have already indicated, the appellant was not legally represented at the trial. There had, however, been two grants of legal aid to the appellant, both of which had been cancelled before the trial commenced, and it is necessary, having regard to the terms of the only ground of appeal, to review in some detail the history of the criminal proceedings against the appellant, including the grants of legal aid to him. 17 At some time before 17 October 2001 the appellant received a grant of legal aid through the Legal Aid Commission to defend the charge which had been brought against him of importing cocaine. 18 On 17 October 2001 a paper committal proceeding took place at which the appellant was legally represented pursuant to the grant of legal aid. At the conclusion of the paper committal proceeding the appellant was committed for trial. 19 On 26 October 2001 the trial of the appellant on the charge of importing cocaine was fixed to commence on 11 March 2002. 20 In about early February 2002 the grant of legal aid to the appellant was cancelled. On 15 February 2002 the trial date of 11 March 2002 was vacated, to enable the question of legal representation for the appellant to be examined further, and a new trial date of 6 May 2002 was fixed. 21 On 18 February 2002 the appellant appealed to the Legal Aid Review Committee against the cancellation of the grant of legal aid. This appeal was successful and the appellant was again granted legal aid. 22 At mentions before the Chief Judge of the District court on each of 21 March 2002, 5 April 2002 and 12 April 2002 the trial date of 6 May 2002 was confirmed. 23 On 6 May 2002, on the application of the appellant, the trial date of 6 May 2002 was vacated, on the grounds that on 2 May 2002 the grant of legal aid to the appellant had been cancelled and that the appellant wished to appeal to the Legal Aid Review Committee against the cancellation of the grant of legal aid. 24 On 17 June 2002 the Legal Aid Review Committee decided not to allow the appellant's appeal and decided to refuse further funding to the appellant. 25 The appellant was notified of the Legal Aid Review Committee's decision of 17 June 2002 by a letter from the Committee dated 19 June 2002, which was in the following terms: "Your appeal was considered by the Legal Aid Review Committee on 17 June 2002. There is no evidence of a failure to follow instructions or pressure to change evidence by Ms James, nor any reason for your lack of confidence Legal aid has now been cancelled on two occasions for a lack of co-operation. On both occasions this has been preceded by you making unsupportable accusations about two in-house legal representatives to Judges of the District Court. The Legal Aid Commission considers you have engaged in a course of conduct to deliberately prevent effective legal representation and to manipulate the legal process. The conduct has included: 1. a failure to co-operate in providing instructions; and 2. unreasonable conduct which has impaired case preparation; and 3. unacceptable conduct including allegations without foundation made towards solicitors of the Legal Aid Commission. On reviewing this case the Committee has made a determination to confirm the second cancellation of legal aid and given the intractable nature of your conduct refuses to reinstate legal aid or provide any further grant of Legal Aid for the conduct of your case."