New South Wales Court of Criminal Appeal CITATION : Regina v Shalala [2003] NSWCCA 330 HEARING DATE(S) : 14/02/2003; 06/05/2003 JUDGMENT DATE : 11 November 2003 JUDGMENT OF : Handley JA at 1; Sully J at 49; Buddin J at 50 DECISION : 1. Appeal dismissed ; 2. Exhibits returned. CATCHWORDS : CRIMINAL LAW - appeal - no question of principle R v Birks (1990) 19 NSWLR 677 CASES CITED : Shepherd v The Queen (1990) 170 CLR 573 TKWJ v The Queen (2002) 76 ALJR 1579 PARTIES : Regina v Alec Shalala FILE NUMBER(S) : CCA 60365 of 2000 COUNSEL : W Dawe QC (Crown) In person (Appellant) SOLICITORS : Director of Public Prosecutions (NSW) (Crown) In person (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 99/21/0231 FILE NUMBER(S) : LOWER COURT Sides DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60365 of 2000 HANDLEY JA SULLY J BUDDIN J 11 November 2003 REGINA v ALEC SHALALA CATCHWORDS CRIMINAL LAW – appeal – no question of principle FACTS The appellant was convicted of the deemed supply of not less than the commercial quantity of heroin and was sentenced to imprisonment. He appealed from his conviction on 10 grounds which included an allegation that his counsel at the trial had been so flagrantly incompetent that there had been a miscarriage of justice. He also challenged his sentence. HELD: Defence counsel had not been guilty of flagrant incompetence, the other grounds of appeal also failed, and the sentence was not out of the range and excessive. ORDERS 1. Appeal dismissed. 2. Exhibits returned. IN THE COURT OF CRIMINAL APPEAL 60365 of 2000 HANDLEY JA SULLY J BUDDIN J 11 November 2003 REGINA v ALEC SHALALA Judgment 1 HANDLEY JA: In May 2000 the appellant stood trial before Sides DCJ and a jury on a charge of deemed supply on 7 December 1998 of not less than the commercial quantity of heroin based on his alleged possession of four quantities of that drug with a total weight of 260.4 grams. He was represented by Mr C J Watson of counsel instructed by Mr Steven Sukkar solicitor. He was convicted and after a further hearing was sentenced to seven years imprisonment with a non-parole period of five years to date from 8 June 2000. 2 He has appealed against his conviction and sentence on 11 grounds set out in his amended notice of appeal of 4 August 2002. The grounds allege the wrongful admission of evidence (grounds 1, 2, 3, 4), misdirections of the jury (grounds 2, 4, 5, 6, 7, 8), flagrant incompetence on the part of his counsel at the trial (ground 9) and that the verdict was unsafe and unsatisfactory (ground 10). Ground 11 challenges his sentence. 3 The appellant, who remains in full-time custody, represented himself at the hearing. He gave affidavit evidence but was not cross-examined. His former solicitor, Mr Sukkar, also gave affidavit evidence in support of the appeal, and was cross-examined. The Crown filed an affidavit by his former counsel who was cross-examined. 4 The appellant alleges that inadmissible evidence was led by the Crown from the arresting police officers that his vehicle was stopped on Concord Road "as a result of information received", that his vehicle was then searched "for weapons", and that when two small packets of heroin were found during a body search he was asked whether they were for his "own personal use" (ground 1). 5 The evidence that the police acted on information received is commonly given in criminal trials and is not prejudicial. An unexplained stoppage of the appellant's vehicle by police might well lead the jury to speculate, to his disadvantage, and evidence of a reasonable suspicion on their part which could justify stopping the vehicle would not have helped him either. 6 The search for weapons was presented as a routine precaution (Newton T 59). The appellant agreed to the search and no weapons were found. The transcript of the committal proceedings tendered by the appellant at the hearing of the appeal (T 135-7) included evidence that the police did not suspect that weapons would be found (Newton T 19). Evidence of the personal search and the discovery of the heroin, which was disputed by the appellant in his evidence, was relevant and admissible. The question asked of the appellant and his refusal to answer were also relevant and admissible. On the Crown case they were part of the police action following the arrest, and possession for personal use of these small quantities would not be a deemed supply. 7 The next matter relates to a question during the cross-examination of Federal Agent Sykes at the trial (ground 1). He was asked whether Detective Newton was the man in charge "in this investigation concerning Mr Shalala" (T 69-70). The appellant submitted that this would suggest to the jury that he had been the subject of a police investigation prior to his arrest. However the witness did not understand the question in this way because he said that Detective Newton had the carriage of the brief of evidence after the arrest. There were no further questions about any "investigation" of the appellant and the matter was never raised by the Crown. The use of this expression on an isolated occasion during a four day trial cannot cause or contribute to a miscarriage of justice. 8 The consequential ground (ground 2) that the judge failed to direct the jury to disregard the evidence referred to in ground 1 necessarily fails. 9 On the day of his arrest the appellant had met a Mr Arthur Wan twice some hours apart first at Belmore Park at Central Railway and then at Burwood. As a result he came under electronic surveillance directed at Mr Wan. Following a voir dire hearing the judge ruled that the surveillance evidence, and evidence that the appellant had $1705 in currency notes in his possession at the time of his arrest was inadmissible. The Crown then led evidence from Detective Newton that the appellant had "a sum of money" in his possession when he was searched after his arrest. This evidence was not objected to at the trial (T 40) but the appellant now submits (ground 3) that it contravened the judge's ruling. There is no substance in this point. Most adults leave home with money in their possession. 10 The appellant gave evidence at the trial and was cross-examined about his movements that day prior to his arrest. These questions were also said to contravene the judge's ruling (ground 3) but again there is nothing in the point. The Crown case was based on circumstantial evidence. On its case a substantial quantity of heroin had been found in a blue plastic shopping bag in the front passenger side of the vehicle the appellant was driving. He denied all knowledge of the bag or its contents prior to his arrest. He had collected the car, which belonged to his girlfriend, at 10.30 that morning and had had the sole use of it until his arrest about 5.30. His movements after collecting the car were highly relevant in assessing the credibility of his denials. 11 Counsel for the appellant objected to questions about the meetings with Mr Wan but the judge held that they were relevant and admissible. The questions would not reveal that the appellant had come to notice because Mr Wan had been under electronic surveillance. Counsel was vigilant in objecting to questions that might contravene the judge's ruling and some were disallowed (T 101, 103). The consequential ground (ground 4) that the judge should have directed the jury that such evidence could not be used to prove the case against the appellant must also fail. 12 Ground 5 asserted error by the judge in failing to direct the jury that they could not draw an inference of guilt from circumstantial evidence unless each individual fact relied upon by the Crown was proved beyond reasonable doubt. Shepherd v The Queen (1990) 170 CLR 573 establishes that the law is otherwise. 13 Ground 6 asserted error by the judge in failing to direct the jury that no adverse inference could be drawn from Commonwealth Bank deposit receipts for $500 shown in the video taken at the scene of arrest, at least one of which had the hand written date 7 December 1998. This matter was first raised by questions from the jury after they had retired to consider their verdict (T 30 11/5/00). After hearing counsel the judge directed the jury there was no evidence to establish who made the deposits, or where and that because the appellant had not been cross-examined about the receipts he had had no opportunity to explain the documents or answer the jury's questions. 14 He also told them that it would be "highly dangerous and quite unfair for you to draw an inference adverse to the accused in relation to the bank deposit with a hand written date of 7 December 1998" (T 36). No re-direction was sought. The edited video was in evidence and the jury were entitled to draw inferences from it and of course the decision on all matters of fact was for the jury and not the judge. However the direction to the jury was the most favourable to the appellant that could properly be given and there was no error. 15 There is nothing in ground 7 which was based on the judge's statement to the jury, following his voir dire ruling, that the video tape taken at the scene of the arrest would be shown to them in an edited form (T 21-2). He had earlier told them that not all of the tape was being tendered and if it could be fast-forwarded they might be shown the relevant portion later that day (T 21). The direction complained of did no more than keep the jury properly informed of the reason for their absence from the court and why they would not see the video until the following day. The directions were not prejudicial to the appellant. 16 Ground 8 alleged that the judge failed in his summing up to provide "a factual summation of the defence case". The ground is without substance. The standard directions on onus, fact finding, circumstantial evidence and some discussion of the elements of the offence took up pp 1-13 of the summing up. The judge reviewed some of the evidence at pp 14-16. This included reference to an inconsistency in the police evidence highlighted by Mr Watson in his address (15), and a warning that the jury should scrutinise with great care the evidence from the police officers about what occurred while the appellant was in police custody because of the risk of fabrication (15-16). 17 The elements of the offence were then analysed in detail in relation to the facts of the case to highlight what the Crown had to prove without, at that stage, reminding the jury of how the Crown had attempted to do this (16-25). The judge then summed up the Crown case (25-27), and concluded with a summary of the case for the appellant (27-29). Counsel for the appellant did not seek a re-direction and Mr Sukkar did not criticise the summing up. Ground 8 fails because the summing up was balanced and fair. 18 Ground 9, which was the principal ground relied upon, alleged that the appellant's counsel at the trial "was so flagrantly incompetent in his representation of the appellant there has been a substantial miscarriage". The relevant principles were established by R v Birks (1990) 19 NSWLR 677. 19 Paragraphs (a)-(f) of ground 9 repeat grounds 1, 2, 3, 4 and 7 and do not require further consideration. 20 Paragraph (g) alleges that counsel did not properly prepare the case and failed to exploit the discrepancies in the evidence of the three police officers, their knowledge prior to the search of the appellant that a video was available in a police car nearby, and that he failed to notice the bank deposit receipts shown on the video. 21 The second and third of these matters are baseless. The availability of a video camera in one of the police vehicles and the failure of the police to use it to video the initial body search of the appellant were raised in the cross-examination of the police and counsel's final address. Far from the matter being overlooked it was an important, if not central, part of the defence case that no heroin had been found on the appellant and that the police evidence in this respect was a fabrication. 22 The possible significance of the three bank deposit receipts was missed by the police, the Crown prosecutor, and the legal representatives of the accused. However the appellant, in accounting for his movements that day, failed to mention either in conference or in evidence his visit to the Commonwealth Bank to make this deposit or deposits assuming he made such a visit. He did give evidence about his need to send money to Western Australia to pay his son's school fees and that he drove to Burwood for this purpose but was unable to send the money because the Burwood post office had closed for the day. 23 As the judge said, after the jury's questions had drawn attention to this evidence, it gave rise to an inference adverse to the appellant which if drawn "is pretty telling because it goes to the heart of why it was and where he was at the time of his arrest … I mean it could be described as fatal" (T 32). The judge's re-direction on this point was favourable to the appellant and represented the best possible outcome for him. If, as appears, he did make these deposits that day he should have told his counsel about them and referred to them in his evidence. If Mr Watson had noticed the date on these deposits he could have done nothing. Any attempt to have this part of the video edited out would only have drawn attention to these receipts and their significance. Prima facie they were admissible. The incident is not evidence of incompetence and it did not occasion or contribute to a miscarriage of justice. 24 The remaining particular under para (f) is that counsel failed to appreciate the discrepancies in the evidence of the police officers as to their positions when the appellant and his vehicle were being searched. The appellant was represented at his committal by Mr Steirn SC who cross-examined the police on this issue. Federal Agents Sykes and Lester drew plans of the scene showing the position of the police and the accused in relation to the vehicles and these became exhibits 3 and 4 in the committal. These plans and the evidence of Detective Newton at the committal revealed discrepancies. 25 Mr Watson was aware of this evidence but decided to ignore it because he considered that the discrepancies were relatively minor and not significant. He considered, rightfully in my view, that the failure of the police to video the body search of the appellant, after the blue bag with the drugs had been found in the front of his vehicle, when there was a video only a few feet away, was a more credible basis for an attack on the prosecution case. 26 Even if this was a wrong tactical decision, it was an informed and deliberate one made in an endeavour to present the defence case in the best possible way. Any tactical error, if such there was, would not be evidence of flagrant incompetence. See TKWJ v The Queen (2002) 76 ALJR 1579. This allegation must be rejected. 27 Paragraphs (h) and (i) assert that counsel failed to investigate the appellant's claim that police officers Lester and Newton had threatened him at Burwood Police Station with prosecution for possessing a commercial quantity of heroin unless he co-operated with their investigation of Mr Wan, and that counsel advised him not to give such evidence. 28 Mr Watson denied receiving such instructions (affidavit 16/7/02, T 2). Mr Sukkar's affidavit (23/11/01) refers to events at Burwood Police Station but did not mention any threat of this character. He gave oral evidence on this issue (T 63, 66, 69 and 79) which was vague and unconvincing. However the decisive fact is that the appellant did not mention this matter in his written complaint to the Legal Services Commissioner made prior to 5 September 2000 which was referred that day to the Bar Association. The complaint was supported by 14 particulars of alleged incompetence, but this allegation was not mentioned. I am satisfied that it is a recent invention which must be rejected. 29 Paragraph (j) alleges that counsel should have investigated, prior to the trial, the reason why Detective Newton had left the police force and whether this was due to corruption. This is an absolutely hopeless point. There is no evidence that the appellant, his solicitor or his counsel knew that Detective Newton had left the police force before he gave evidence at the trial and said that he was then employed by the Australian Stock Exchange (T 39). One would expect this organisation to make appropriate inquiries before employing a former police officer and there is no evidence that investigations would have revealed anything to Mr Newton's discredit. 30 Paragraphs (k) and (l) are incapable of establishing incompetence on the part of counsel. 31 Paragraph (m) asserts that counsel failed to establish that the drugs found in the vehicle and on the appellant, which did not carry the appellant's fingerprints, did not carry the fingerprints of Detective Newton either although, according to the latter's evidence, he had handled these items. 32 Detective Newton did not give evidence at the trial that he was wearing gloves when he handled these items but cross-examination on this issue would have led nowhere because he gave that evidence in the committal (T 30, 37). 33 Paragraphs (n) and (o) allege that counsel failed to fully explore why the boot of the appellant's car was open and whether it was searched, so that the jury were left with an improper inference that the police may have found something there. The politest thing to say about these allegations is that if anything incriminating had been found in the boot evidence to this effect would have been led by the Crown. Since there was no such evidence the jury would naturally infer that nothing of significance was found. It was not suggested that the police did not search the boot and the video showed that it was open. Defence counsel addressed on this point (address T 16). 34 The final para alleges that counsel failed to explore the reason why Detective Newton's official notebook did not record the discovery of heroin in the appellant's pocket until after the video had been activated and the cash had been found. It seems that his previous counsel, Mr Steirn SC and Mr Wilkinson, did not think that these matters were significant because Mr Sukkar had not been asked to subpoena this notebook. There is no evidence that it was available at the trial or that Mr Watson had access to it. It was not tendered in this Court, and we have had no opportunity to assess the significance of the entries. This paragraph also fails. 35 Mr Sukkar's affidavit and oral evidence asserted in substance that Mr Watson failed in cross-examination and address to challenge the police evidence that drugs were found on the appellant. This allegation is comprehensively refuted by the transcript of the trial, Mr Watson's closing address and the summing up which demonstrate that this challenge was at the forefront of the defence. Mr Sukkar agreed that the appellant had never instructed him that the drugs found in the car had been planted by the police (T 68) and Mr Steirn SC specifically disavowed any such suggestion at the committal (T 16). 36 Mr Sukkar's evidence in chief was to the general effect that Mr Watson had not conducted the defence in accordance with the appellant's instructions and had failed to properly present his case. However this was contrary to his statement to the Bar Association. The report of the Professional Conduct Committee which was adopted by the Bar Council, was annexed to Mr Watson's affidavit. This stated: "20. The complainant's solicitor, Steven Sukkar, reported that it was his observation that the barrister questioned the police evidence satisfactorily, and that the Filippetti defence was discussed by the complainant and the barrister and then put to the court. Mr Sukkar implies that the defence was put to the court as a result of agreement between the barrister and the complainant." 37 Mr Sukkar agreed that he said this to the Bar Association, but claimed in his oral evidence that it was a lie, and he only said it to protect Mr Watson in the belief that whatever he said could not help the appellant. This admission discredits his evidence. His evidence in this Court has been given since his arrest on 5 December 2001 on a charge of being knowingly concerned with the importation of 123 kilos of amphetamine. He has been in custody, bail refused, ever since (T 98). 38 There are two other matters that should be mentioned. The appellant submitted that the evidence at the trial was that the blue plastic bag containing the bulk of the heroin was "tucked" or "squeezed" between the central console and the front passenger seat in the vehicle so as to be, in effect, out of his line of sight. Much time was spent on this issue but a careful reading and re-reading of the transcript of the trial has failed to reveal any reference to this bag being tucked or squeezed in this position. The judge in his ruling on the voir dire stated that "the drugs were found stuffed down between the passenger seat and the console" but the evidence on the voir dire did not support this statement. 39 The other matter relates to an inconsistency between the evidence given by Federal Agent Sykes during the voir dire on 9 May and his evidence in the trial given the following day. At T 17 during the voir dire he said that he was not present when the appellant's car was pulled over, and when he arrived the appellant and the other two police officers were at the rear of the appellant's vehicle. He said he did not see the initial search of the vehicle by Detective Newton, or the search of the appellant which revealed the presence of the cash and the two small packets of heroin. 40 On the other hand his evidence in chief given when he read his statement (T 64-5) and his evidence in cross-examination (T 65-7) was that when he arrived he saw the appellant and the police at the rear of the vehicle, that he saw Detective Newton enter the driver's side of the vehicle, come back, and arrest the appellant. He then saw Detective Newton search the appellant and discover first the cash and then the heroin. 41 These inconsistencies were not explored in cross-examination. However similar inconsistencies between the evidence of this police officer at the trial and his evidence at committal were explored (T 66-7). 42 Mr Sukkar said in his oral evidence that the appellant noticed the inconsistencies between the evidence of this police officer on the voir dire and his evidence at committal and raised the matter with Mr Watson and himself during what must have been the lunch break that day. Neither he nor Mr Watson had picked them up (T 70-1, 102-6) but neither made any attempt to have the tape played back. 43 The appellant again raised this point after Agent Sykes had given evidence in chief in the trial but he was cross-examined about his inconsistent evidence at committal. This officer was called as a corroborating witness. The principal witnesses for the Crown were Agent Lester and Detective Newton. In his final address defence counsel relied on inconsistencies between the evidence of Agents Lester and Sykes (T 14) to discredit Lester. This was more important than discrediting Sykes. 44 The failure, if that it be, of defence counsel to extract the last ounce of advantage from the cross-examination of a Crown witness cannot establish incompetence, let alone flagrant incompetence and cannot constitute a miscarriage of justice. Agent Sykes was only a marginal witness and the appellant's case would not have been greatly assisted if his evidence had been totally discredited. The better option was to use the evidence of Agent Sykes to discredit the evidence of Agent Lester. 45 Neither of these matters, which were not covered by the amended notice of appeal, have been established and ground 9 fails. 46 The appellant sought to support ground 10, that the verdict was unsafe and unsatisfactory, on the basis of the matters covered by grounds 1-9. Legal error has not been established and there is nothing in the complaints and allegations of the appellant which required the jury to find that there was a reasonable doubt as to the guilt of the appellant. They saw and heard the police officers and the appellant giving evidence and being cross-examined. The case turned partly on the credibility of the police officers but principally on the credibility of the appellant, and in particular the credibility of his denials of any knowledge of the blue plastic bag and its contents. This was essentially a jury question. In my judgment the verdict was not unsafe or unsatisfactory and ground 10 fails. 47 Ground 11, that the sentence was excessive, is without merit. The judge found there were special circumstances and made an appropriate allowance. The sentence was otherwise well within the range established by the judicial statistics and properly reflected the objective criminality of the offence. 48 The appeal therefore fails on all grounds and must be dismissed. The exhibits from the trial and committal may be returned to the solicitor for the Director of Public Prosecutions. 49 SULLY J: I agree with Handley JA. 50 BUDDIN J: I agree with Handley JA. ********** Last Modified: 11/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.