Can, Vural v The Queen - [2007] NSWCCA 346

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: CAN, Vural v R [2007] NSWCCA 346

HEARING DATE(S): 27 November 2007

JUDGMENT DATE:
14 December 2007

JUDGMENT OF: Giles JA at 1; Grove J at 2; Harrison J at 3

DECISION: The application for extension of time to appeal is refused.

CATCHWORDS: CRIMINAL LAW – conviction appeal – Crown's obligation to call witnesses – allegation of miscarriage of justice – obligation does not extend to investigation of every potential witness or theory raised by defence – no miscarriage of justice – EVIDENCE – evidence of consciousness of guilt – whether properly admitted by trial judge – no error found – APPLICATION FOR EXTENSION OF TIME TO APPEAL – inadequate material to support application – application refused

LEGISLATION CITED: Customs Act 1901
Evidence Act 1995

CASES CITED: Chahine v R [2006] NSWCCA 179
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Pollitt v The Queen [1992] HCA 35; (1991-2) 174 CLR 558
R v Clough (1992) 28 NSWLR 396
R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450

PARTIES: Vural Can (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3253 (formerly 2007/1407)

COUNSEL: In person (Appellant)
D G Staehli SC (Respondent)

SOLICITORS: In person (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0289

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

LOWER COURT DATE OF DECISION: 13 May 2004

2007/3253 (formerly 2007/1407)

GILES JA
GROVE J
HARRISON J
14 December 2007

CAN, Vural v R

Judgment

1 GILES JA: I agree with Harrison J save that I did not have the initial attraction in [54].

2 GROVE J: I agree with Harrison J.

3 HARRISON J: The appellant was found guilty by a jury on 13 May 2004 on a charge that he imported into Australia a prohibited import consisting of a quantity of cocaine not less than the trafficable quantity applicable to cocaine contrary to s 233B(1)(b) of the Customs Act 1901. The appellant has appealed against that conviction and applies in advance of his appeal for an extension of time within which to do so.

Background

4 On Friday 27 December 2002 the appellant arrived at Sydney airport on Emirates flight EK 410 from Dubai. He passed through the immigration primary line and collected his baggage. He was subsequently escorted to a baggage examination area for the purpose of conducting a baggage search. The appellant was asked some questions about his luggage and the answers given by him to questions on the Incoming Passenger Card (“the IPC"). The appellant admitted completing the IPC and said that he was fully aware of the contents of his luggage. The appellant gave an address in Bondi on the IPC as his residential address in Australia.

5 As part of his search the Customs officer searched a black toiletries bag that contained a plastic shampoo bottle. He noticed that the bottle was harder than he had expected. He asked another Customs officer to test the bottle while he continued to search the appellant's luggage. He then took the appellant's suitcase to a nearby x-ray machine for scanning.

6 The officer examined the contents of the appellant’s wallet, which the appellant had taken from his pocket. He located receipts from two pawnbrokers in Colombia. He put these aside for further examination and they were subsequently photocopied by another Customs officer. Preliminary tests were conducted showing a positive result for the presence of cocaine in the shampoo bottle. The appellant was then taken to an interview room adjacent to the baggage search area.

7 During the events in the interview room, which were recorded on videotape, the original Colombian receipts were returned to the appellant. The Australian Federal Police were contacted and requested to attend the interview room to take the appellant into custody. During this time, on the Crown case, the appellant secreted the original Colombian receipts under the table in the interview room where they were discovered by another Customs officer four days later.

8 The appellant was subsequently arrested and charged with the offence for which he was ultimately convicted.

9 The shampoo bottle was later examined and dismantled on 30 December 2002. It was found to contain three plastic bags within which was located 415g of a white powder. An analysis by the Australian Forensic Drug Laboratory revealed that the purity of the cocaine was 72.4 per cent amounting in weight to a total of 300.4g of pure cocaine. The wholesale value of the cocaine in Australia was estimated at $30,000. The street value was estimated at $120,000.

10 The address in Bondi given by the appellant was subsequently discovered to be false. The tenant had been living at the address since October 2002 and did not know the appellant. One of the owners of the property informed the police that the appellant had leased the premises in April 1999 for a term of 12 months but vacated them in February 2000.

11 Ceyhun Kucuk had been in custody with the appellant following his arrest. Mr Kucuk and the appellant spoke to each other in Turkish over a period of about five to six months. Their conversations included discussion of the charges against the appellant. The appellant told Mr Kucuk that he had gone to Turkey with lots of cash and that he wanted to buy drugs there but that they were too expensive. Accordingly the appellant had travelled to Colombia in order to purchase cocaine there. He told Mr Kucuk that the price of cocaine in Colombia was between $500 and $1000 per kilo compared to US $30,000 per kilo in Turkey. The appellant had taken cocaine back to Turkey and used some of it there. He had wanted to bring half a kilo of cocaine to Australia with him. He brought it in a shampoo bottle.

12 The appellant described to Mr Kucuk how he had cut the bottle, emptied it, put the cocaine in a plastic bag, put the cocaine into the bottle with the shampoo on top and then glued the bottle back together. The appellant also said that he had arranged for a poor person who needed the money in Turkey to take the blame if he got caught. That person in Turkey was to receive $20,000 - $10,000 when he gave evidence to the police and $10,000 for his family. Mr Kucuk said that the appellant had told him, however, that something had happened to that person and that he had to organise another person in his stead. As a result the appellant had asked Mr Kucuk to ask someone to make a call to his parents to organise that.

Grounds of appeal

13 The appellant relied upon eight grounds of appeal.

:

(a) Mr Fikri Akar (this person has confessed to Turkish authorities and taken full blame for the crime [the appellant] has been charged with;

14 Mr Akar is alleged to have told foreign authorities that he was responsible for placing the cocaine in the appellant's bag. According to the appellant's submission, he has been charged and sentenced in Turkey for that crime.

15 Ms Semra Bulut was a witness to Glodya Evalina allegedly switching the shampoo bottle that contained the shampoo with the appellant’s own Pantene shampoo bottle that had been in his luggage the day before he left Turkey. Ms Bulut gave a statement that was read into evidence by the defence at the trial.

16 The existence of each of these people and the proposition that each could have given evidence relevant to the trial of the appellant in fact formed the basis of the appellant's stay application on 29 April 2004. That application was based upon an affidavit of his then solicitor. The affidavit and the documents that are annexed to it tended to show that Mr Akar had initially told Turkish prosecuting authorities in May 2003 that he had given 450 g of cocaine to a Romanian woman and that he "later found out that she put it in the bag of a man by the name of Vural Can who was caught in Australia”. The appellant's father had made this allegation to Turkish authorities, which in turn sought to detain Mr Akar for interrogation. By the time of the trial Australian Federal Police enquiries had confirmed Mr Akar's apprehension but not much else. This is discussed in more detail below.

17 Prior to the appellant's first trial, which resulted in a hung jury, there had been correspondence between the parties in which the Crown had declined to meet the costs of a video link to take evidence from witnesses in Turkey. This obviously included Mr Akar and Ms Bulut. The Crown contended that such witnesses ought properly to be regarded as defence witnesses. The attitude of Legal Aid to meeting the costs of a video link had fluctuated before it ultimately declined to fund the appearance of witnesses from Turkey.

18 In argument about the prosecution's refusal to call such witnesses in its case in the stay application, the trial judge indicated her view that the "evidence" in question, even if it were available, was "fanciful", "unreliable" and "inherently incredible". In her Honour's judgment on the stay application, she concluded that almost all the evidence that might be given by these witnesses amounted to hearsay, with the exception of the observations allegedly made by Ms Bulut about what she saw Glodya Evalina doing with the appellant's suitcase. Her Honour also concluded that the Crown's decision that it lacked any obligation to call the witnesses was well founded: see R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450. The Crown's obligation did not extend to the investigation of every potential witness or theory raised by the defence.

19 Her Honour concluded that s 65 of the Evidence Act 1995 provided a mechanism by which the evidence of Ms Bulut and Mr Akar might have been made available in the defence case in any event. In due course a revised statement of Ms Bulut dated 7 May 2004 was admitted as exhibit 4. The statement of Mr Akar was rejected on various grounds that are not presently contested by the appellant.

20 The appellant made the following submissions in support of his criticism of the prosecution’s failure to call Mr Akar and Ms Bulut:

"I am expressly adopting the contention that the witnesses and their statements were relevant to my defence, furthermore my submission is that there was no " basis " for the non-disclosure of the witnesses and their statements.

The Crown cannot and should not by law use the doctrine as a device to avoid calling witnesses when they are available, the makers of the statements. Thus to deprive the defence of the opportunity to cross-examine them would not be consistent with the fundamental duty of the prosecution to place all relevant material and facts before the Court, so as to ensure that justice is done properly in accordance with the law.

denial

21 At the heart of the appellant's submission in support of this ground is the statement, contained in the appellant's written submissions, that Mr Akar had stated to foreign (presumably Turkish) authorities that he was mainly responsible for placing the cocaine in the appellant's bag without the appellant's knowledge. The appellant states further that Mr Akar had been charged and sentenced in Turkey for that matter. I discuss below what may be the significance of those matters if established. However, it should be noted for present purposes that the evidence did not establish either of these things.

22 The relevant material in this respect is the statement of Mr Akar which the appellant attempted to get into evidence and which her Honour rejected. It is instructive to set out the relevant portions of that statement which are as follows:

"2. On 30 May 2003, I gave an interview at the Sincan Public Prosecutors Office in Sincan, Turkey. . .

3. During that interview, I confessed to being involved in a conspiracy with Glodya Evalina to place cocaine in the luggage of Vural Can before he returned to Australia in December 2002.

4. Glodya provided me with money, and told me where I could buy the cocaine. I then went and purchased the cocaine from where she told me. This was in Taksim in Istanbul. The man I bought the cocaine from was a shoe polisher near the Taksim Post Office, in other words, at the park across from the Marmara Hotel. The cocaine cost three billion liras. I paid the money in three instalments over one month. The first payment was five hundred million liras.

5. I saw Glodya a few days before Vural was due to leave for Australia. At this time, I gave her the cocaine.

6. I have now been charged with being an accomplice in the offence of trafficking and possessing drugs under s 403/5 of the Turkish Criminal Law.

23 That statement does not in terms establish or even imply that Mr Akar was “mainly” responsible for placing the cocaine in the appellant's bag, or indeed that he was responsible for doing so at all. Moreover, the statement makes it clear that Mr Akar had not been sentenced, and presumably also not convicted, prior to the date of the appellant's trial when the admissibility of the statement was being considered by her Honour.

24 I am unable in the circumstances to discern any error that occurred at the trial, or any associated miscarriage of justice, that may have flowed from a failure by the Crown to call either Mr Akar or Ms Bulut.

25 The appellant's submissions concerning Mr Akca arose in the following way. It was part of the Crown case at the trial that the appellant had admitted his guilt to Mr Kucuk, a fellow inmate with him in gaol, and that part of the admission included the statement by the appellant that someone had been paid $20,000 to confess to the crime in Turkey: see par [12] above. The Crown argued, therefore, relying on Mr Kucuk’s evidence, that the suggestion by the appellant that someone in Turkey had been convicted of "loading him up" could be disregarded. On the contrary, the appellant contended that the Crown refused to call Mr Akca, an inmate in Parklea Prison with both Mr Kucuk and the appellant, who had overheard what had allegedly been said by the appellant to Mr Kucuk, and whose evidence would have demonstrated that Mr Kucuk's evidence of the appellant’s admissions was false. According to the appellant's case, this would then mean that the conviction of Mr Akar in Turkey (if that is what occurred) was genuine, thus showing that the appellant had been wrongly convicted.

26 Apart from the circularity of the reasoning, there are at least four problems with this. First, there is no evidence to establish that Mr Akar had in fact been convicted of anything at all, let alone of an offence allegedly related to the circumstances leading to the appellant's ultimate conviction. The appellant drew the attention of this Court to a series of documents, translated from Turkish, which can be accepted as records of criminal proceedings from time to time in that country. However, none of these documents is particularly helpful and, most importantly, none appears to be conclusive of any of the matters for which the appellant presently contends.

27 Secondly, even if it could be established that Mr Akar had been convicted in a Turkish court, whether with or without the assistance of the translated documents, Mr Akar's guilt was not necessarily co-extensive either with the appellant's innocence or a miscarriage of justice at his trial. There is no evidence that any part of Mr Akar's “conviction”, or any "confession" allegedly given by him upon which his conviction may have been based, goes as far as to exculpate the appellant or to demonstrate that he was set up as a result of some criminal conspiracy in Turkey before he left.

28 Thirdly, the appellant's sister Serpil Can gave evidence in the Sincan Criminal Court in Turkey on 31 October 2005 suggesting that Mr Akar was "definitely not the person before the court”. She said:

“I have never seen the accused that is before the court. Fikri Akar (had earlier) told me, by giving another name that he is an acquaintance of my brother and I gave evidence in Mugla Criminal Court in this regard but the person who is before the court at present is not the person who spoke with me. But my father Huseyin Can knew most of my brother Vural Can’s friends. When he saw the person before the court in Sincan as my brother's friend and when he established that he stays in a hotel, he reportedly lodged a complaint in the Office of the Prosecutor, saying ‘this is the person who framed up my son’, this person was reportedly apprehended. But the person who came to me was not this person. My father has passed away. He was suffering from Alzheimer's disease therefore could not recognize the people that much therefore he might have made a mistake. (He was) definitely not the person before the court, because the eyes of the person who spoke with me and was saddened by my brother's situation, and was my brother's friend, were green. I wish he was, so we could tender the statements of the accused to the court in order to get my brother released".

29 Although there was some dispute as to precisely what this evidence meant, it appears to cast doubt upon the identity of the person "arrested" or "convicted" in Turkey in the way contended for by the appellant.

30 Fourthly, and perhaps most significantly, a statement given by Mr Ilhan Akca on 18 November 2005 (which for present purposes can be accepted as a statement of evidence that he would have been prepared to give at the trial) does not on its face mean that the evidence given by Mr Kucuk was false. It may mean that the evidence given by Mr Kucuk about the presence of Mr Akca was false. However, the very terms of the statement given by Mr Akca indicate that his evidence, taken at its highest, could only have availed the appellant at his trial to the extent that it may have contradicted Mr Kucuk’s evidence that Mr Akca was present when the appellant made the relevant admissions to Mr Kucuk. Mr Kucuk did not say that he had only ever had conversations with the appellant at times when Mr Akca had been present. His evidence would have left on foot the possibility that the appellant had made the admissions to Mr Kucuk about which Mr Kucuk gave evidence, in Mr Akca’s absence. In the words of the Crown's submission, "Mr Akca's apparent denial of having heard [the appellant] say the things attributed to [him] by Mr Kucuk does not advance consideration of whether the conversations between the two men occurred in the terms of which Mr Kucuk gave evidence”.

31 Finally, with respect to Mr Kennedy, the appellant did not identify what evidence Mr Kennedy could have given that may have been relevant to the issues in his trial. Mr Kennedy was apparently a Corrective Services officer to whom the appellant referred in his evidence at transcript 239-240. It was Mr Kennedy who gave the appellant the retraction letter purporting to be from Mr Kucuk, which became exhibit 3 in the appellant's case at trial. The appellant received this letter in an envelope from Mr Kennedy. The envelope had no stamp; it was what was described as "inter-gaol" mail. Mr Kennedy's name appears in handwriting on the bottom of the letter but it is not suggested that he witnessed it. There was no issue in the trial about the circumstances in which the letter came to be in the possession of the appellant. There was no reference to Mr Kennedy other than in the evidence referred to above, and no direction was sought at the trial in relation to his absence or his failure to give evidence. In the circumstances it is unsurprising that Mr Kennedy was not called as a witness at the trial.

:

32 The appellant's stay application was based partly on the ultimate refusal of Legal Aid to pay for the attendance of the Turkish witnesses. The appellant argued by analogy with the reasoning in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 that "an accused person is denied a fair trial if relevant witnesses, through no fault of the accused, not giving evidence in the trial": see par [13] of the applicant’s submissions in support of his application for a stay of proceedings.

33 The Crown argued before her Honour and reiterated in this Court that there was no authority for any such proposition. In any event, her Honour concluded that s 65 of the Evidence Act 1995 provided a mechanism for the admission of otherwise admissible material from the Turkish witnesses which ultimately led to the admission of Ms Bulut’s statement as exhibit 4 in the appellant's case at the trial. The first limb of this ground is not made out.

34 During the course of submissions in this Court, the appellant acknowledged that the second limb of this ground of appeal was not an allegation of a failure by the Crown adequately to disclose its case but rather a reiteration of an allegation of failure by the Crown to lead evidence from the Turkish witnesses. This was, in effect, a re-agitation of Ground 1. It is unnecessary to deal further with this aspect.

:

35 This ground of appeal is also a repetition of Grounds 1 and 2(b). It requires no further consideration in the light of the acknowledgement referred to earlier.

:

Jones v Dunkel

(a) Mr Ilhan Akca

36 As has been discussed above, Mr Akca was in custody for a period at the same time as the appellant and Mr Kucuk. Mr Kucuk gave evidence in cross-examination that in his statement to police he had said that Mr Akca was present when he was having "these conversations" with the appellant. Part of that evidence was as follows:

"Q. And in that statement do you agree that you said that there was another person present when you were having these conversations with [the appellant]?
A Yes sir.

Q. That was Mr Akca, is that right?
A Yes. Ilhan Akca.

Q. And when you say present, obviously you mean that he was there and he would have heard the conversations wouldn't he?
A Not all the time.

Q. Well he was there enough to hear enough of the conversations to know what you were talking about wasn't he?
A Yes.

37 The appellant's evidence was that he shared a cell for a period with Mr Akca. In the context of denying that he had made any admissions to Mr Kucuk, the appellant said that he "was mostly talking to Mr Akca”.

38 Earlier in the case Federal Agent Ferreira had agreed in cross-examination that Mr Kucuk had said that Mr Akca was present while the allegedly incriminating conversations with the appellant had taken place in gaol. Mr Ferreira agreed that he had not spoken to Mr Akca, that he believed him no longer to be in custody, that Probation and Parole would have been able to tell him where Mr Akca was, but that he had not asked that service to track him down.

39 In his closing address, counsel for the appellant, apparently referring to this issue, said the following:

"There hasn't been a proper investigation. Inquiries haven't been responded to or they haven't been followed up. Witnesses who, even the officer-in-charge has conceded, would be worth talking to haven't been spoken to and apparently in one case they're still intending to talk to a person. Apparently the Australian Federal Police are telling you, "Oh yeah, there is a witness out there we intend talking to, but we haven't done that yet. We'll do it sometime in the future". I mean, the trial is concluding, the trial finishing now. What does that make you feel about the level of the quality of the investigation in this matter?"

40 Counsel for the appellant at the trial made no submission about any inference to be drawn from the failure to call Mr Akca.

41 When her Honour came to this issue in her summing up she dealt with the absence of any supporting evidence for Mr Kucuk in the following terms:

"To the extent that there is no supportive evidence, then to that extent you would be less likely to accept the evidence that he has given. In this case there is no such supportive evidence available. You know that it is Mr Kucuk's evidence that there was one other prisoner present when the admissions were being made, but you also know from the evidence of Federal Agent Ferreira that the police have not interviewed that person and no such evidence from that person has been called.

If you agree with that argument and you agree that there is some unfairness to the accused, you are entitled to take that into account overall in assessing the Crown case

42 The Crown complained to her Honour about her use of the italicised words in the quote from her summing up. This led to an argument, which included some reference to Jones v Dunkel, but which was resolved by the Crown suggesting a form of words which would inform the jury that it could take the fact that Mr Akca was not called into account in assessing Mr Kucuk's evidence. Counsel for the appellant initially accepted the Crown's suggested form of words but later qualified that, eventually saying, "I’ve just indicated my preference is to leave it, for it to be left so as not to draw any further attention to it and perhaps give it greater significance".

43 Her Honour indicated that she would use a form of words similar to those suggested by the Crown. Therefore, later in her summing up, in reference to the failure by the police to interview Mr Akca, her Honour said the following:

"But you are entitled to take into account the fact that that person has not been interviewed and is not here to give you evidence in assessing whether or not you accept Mr Kucuk as being a witness of truth beyond reasonable doubt."

44 Although these words were consistent with what the Crown had suggested, they were on one view overly favourable to the appellant. The Crown submitted that this was not the case in which a Jones v Dunkel comment adverse to the Crown should have been made: see Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 per Gaudron and Hayne JJ at [6], [17] and [18]; Chahine v R [2006] NSWCCA 179 at [48]-[49]. There had been no relevant enquiry. In any event, the Crown submitted that this was a case in which Rule 4 should apply.

45 In my opinion, no miscarriage of justice has taken place. The relevant issue was whether or not the jury might reasonably have accepted as truthful the evidence given by Mr Kucuk in the absence of an explanation of a failure by the Crown to call someone who was apparently present at the time. Mr Akca’s presence or absence as a witness was irrelevant to the substance of the evidence given by Mr Kucuk that inculpated the appellant. Mr Akca's presence or absence as a witness was confined narrowly to the question of whether or not the appellant and Mr Kucuk could have had an opportunity to speak without him being present. The significance of Mr Akca (if any) would not even have been apparent if it had not been for the fact that Mr Kucuk himself had made reference to him. Furthermore, the evidence of Mr Kucuk revealed that the relevant conversations that he allegedly had with the appellant could have taken place in the absence of Mr Akca: he was not there "all the time". Finally, her Honour’s summing up in my opinion wholly neutralised any possible injustice to which the appellant could point in this Court.

46 Nor am I able to identify any injustice to the appellant as the result of an omission by the trial judge to comment upon an alleged failure by the Crown to call Mr Kennedy as a witness at the trial.

:

47 No specific failure has been identified by the appellant in his submissions. Her Honour dealt comprehensively with Mr Kucuk's evidence. Her Honour gave warnings required by s 165 of the Evidence Act 1995 and in accordance with the issues raised with respect to prison informers in Pollitt v The Queen [1992] HCA 35; (1991-2) 174 CLR 558 and R v Clough (1992) 28 NSWLR 396 at 405-407. Counsel for the appellant raised no complaint with her Honour at the time. The appellant has demonstrated no error. This ground of appeal fails.

Unfair and bias [sic] summing up.

48 Similarly, no specific failure has been identified by the appellant in his submissions. Counsel for the appellant raised no complaint with her Honour at the time. The appellant has demonstrated no error. This ground of appeal fails.

:

49 The evidence at the trial revealed that after a search of the appellant's baggage, two receipts were found in his wallet. The receipts were from Colombian pawnshops, one in the sum of US $800 and one in an amount, which was the equivalent of approximately US $200. Later, in the interview room at the airport, the receipts that had been taken from the appellant were returned to him and he placed them in his wallet. The appellant was subsequently taken from the airport and charged.

50 Four days later another customs officer found the receipts stuck under the table in the interview room. It was the Crown case at the trial that the only way that the receipts could have come to be in that position was if the appellant had put them there. A video recording of what took place in the interview room showed that the appellant had the opportunity to do so after the receipts had been returned to him and that he must have done so out of a consciousness of guilt.

51 The appellant gave evidence about the receipts, saying that one in his name was obtained when he pawned a bracelet for US $800 in order to obtain money to permit him to continue gambling at a Bogotá casino. The appellant said that the second receipt was written in the name of a woman whom he had met at the casino and who had lent him US $150, also to permit him to continue to gamble. The appellant said that he gave the woman his ring, in effect as security for the debt, which she had subsequently pawned, returning the receipt to him before he left Colombia.

52 The appellant said in cross-examination that the bracelet was worth about US $1400 - US $1500 and that the ring was worth about AUD $500. He agreed that there was a shortfall between the money he had obtained for these items and their true value, which he did not seek to recover before leaving Colombia leaving both items in hock. When asked by his counsel at the trial whether he had put the receipts under the table in the interview room, he replied:

"I can't exactly recall I might have done it but I can't recall I probably chucked it in there because they took the photocopy of all of them and give it back to me and I didn't need that receipt any more. So I probably chucked it there. I don't remember specifically sticking it under the table but I probably chucked it there or dropped there, I can't exactly remember."

53 In cross-examination the appellant repeated that he had probably dropped the receipts there but could not remember doing so. The Crown submitted that the applicant did not offer any sensible explanation for how the receipts came to be found under the table. The Crown relied upon the hiding of the receipts as evidencing a consciousness of guilt. The Crown submitted in this Court that it was appropriate for her Honour to direct the jury in relation to these events in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211.

54 No complaint was made on behalf of the appellant about this evidence at the trial. I was initially attracted to the proposition that her Honour's direction concerning it may have been suspect, in the sense that the facts did not support a finding of a consciousness of guilt, for the reason that it made no sense for the appellant to seek to dispose of the receipts when he did, having regard to the fact that they had been taken from his possession at the airport and photocopied. However, it seems clear that the appellant was not made aware of the fact that the receipts had been photocopied until much later and, relevantly, at a time after he had left the interview room. Disposal of the receipts by the appellant in circumstances that may well then have appeared to the appellant to amount to their loss or destruction for all purposes is significantly different to a disposal of the receipts for what would have amounted to no good purpose.

55 In my opinion the evidence was not wrongly admitted and no miscarriage of justice has been identified.

:

Failing to refer to the evidence given by the accused.

56 The appellant makes no particular submissions in support of this ground. No complaint was made on behalf of the appellant at the trial that would support this ground of appeal. This ground of appeal also fails.

Application for extension of time to appeal

57 The appellant filed a notice of intention to appeal on 8 June 2004 and received an extension of time in which to file his notice of appeal and other documents, which expired on 20 December 2004. From that time until a lodgement of the current application dated 11 May 2007, there was no contact with the Court.

58 A letter from the appellant accompanying his application contained the following paragraphs:

"As you can appreciate and understand quite a substantial amount of time has elapsed almost 3 years, since my notice of intention to Appeal was lodged on the 7th June 2004.

59 The Notice of Application for Extension of Time for Notice of Appeal dated 11 May 2007 contained the following explanation of the delay:

"Firstly, a notice of intention to appeal was lodged by me on the 7th June 2004 and I was advised by CCA that it had been listed, with a 6 month time limit. I was also advised by my then lawyers that an extension application had been forwarded, but I have since found out this was not the case, therefore I have been put at a significant disadvantage and I should not be held responsible for my then lawyers failures; then secondly, due to my lawyers inaction from the beginning and the run around I was given by my then lawyers in reference to the Turkish Authorities has also contributed to the delays.

60 It becomes necessary from time to time for this Court to give consideration to applications for extensions of time in various contexts. Such applications should be, and are, considered on their merits having regard to the nature and extent of the delay, the explanation proffered by the applicant for the delay and any other matters which appear to be relevant. I would not, by the granting of an extension of time to the present applicant, wish to be taken as endorsing the proposition that an application as sparsely supported as the present one would be sufficient or adequate for the purposes of this Court in considering whether or not to grant it. In my opinion, the applicant has not demonstrated why in the circumstances of the present case the extension of time that he seeks should be granted. It will in any event be apparent from my consideration of the various grounds of appeal that if an extension of time were granted, I would have dismissed the appeal.

Orders

61 The application for extension of time to appeal is refused.

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Citations

Can, Vural v The Queen [2007] NSWCCA 346

Cases Citing This Decision

0

Cases Cited

11

Statutory Material Cited

2

R v Kneebone [1999] NSWCCA 279

R v Hair [2009] NTSC 9

Dietrich v The Queen [1992] HCA 57

CITATION:	CAN, Vural v R [2007] NSWCCA 346
HEARING DATE(S):	27 November 2007
JUDGMENT DATE:	14 December 2007
JUDGMENT OF:	Giles JA at 1; Grove J at 2; Harrison J at 3
DECISION:	The application for extension of time to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – conviction appeal – Crown's obligation to call witnesses – allegation of miscarriage of justice – obligation does not extend to investigation of every potential witness or theory raised by defence – no miscarriage of justice – EVIDENCE – evidence of consciousness of guilt – whether properly admitted by trial judge – no error found – APPLICATION FOR EXTENSION OF TIME TO APPEAL – inadequate material to support application – application refused
LEGISLATION CITED:	Customs Act 1901 Evidence Act 1995
CASES CITED:	Chahine v R [2006] NSWCCA 179 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Pollitt v The Queen [1992] HCA 35; (1991-2) 174 CLR 558 R v Clough (1992) 28 NSWLR 396 R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450
PARTIES:	Vural Can (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3253 (formerly 2007/1407)
COUNSEL:	In person (Appellant) D G Staehli SC (Respondent)
SOLICITORS:	In person (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0289
LOWER COURT JUDICIAL OFFICER:	Tupman DCJ
LOWER COURT DATE OF DECISION:	13 May 2004