Micalizzi v The State of Western Australia
[2013] WASCA 96
•11 APRIL 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MICALIZZI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 96
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 5 FEBRUARY 2013
DELIVERED : 11 APRIL 2013
FILE NO/S: CACR 37 of 2012
BETWEEN: JOSEPH FRANK MICALIZZI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 1616 of 2008
Catchwords:
Criminal law - Appeal against conviction - Right to silence - Duress - Whether error in trial judge's directions - Whether miscarriage of justice - Evidence adduced by defence counsel as to why accused exercised right to silence - Rational forensic decision - Waiver of the right to silence
Legislation:
Criminal Code (WA), s 31(3)
Criminal Law Amendment (Homicide) Act 2008 (WA)
Criminal Procedure Act 2004 (WA), s 143(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr J McGrath SC
Solicitors:
Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
R v Birks (1990) 19 NSWLR 677
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Smith v The State of Western Australia [2010] WASCA 205
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
McLURE P: The appellant appeals against his conviction, after trial, of one count of possession of methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act) and one count of possession of MDMA with intent to sell or supply it to another contrary to s 6(1)(a) of the Act.
In the early hours of the morning of 5 March 2008 the appellant and his co‑offender, Jamieson Andrew Santos, left Bankstown Airport in New South Wales in a light aircraft carrying large quantities of MDMA and methylamphetamine. Santos was the pilot and the appellant the only passenger. The aircraft made two stops en route to Western Australia. When the aircraft piloted by Santos arrived at Jandakot Airport on 5 March 2008, it was met by police and the aircraft searched. Police found 8.843 kg of MDMA tablets and 21.85 kg of methylamphetamine in a black bag in the aircraft.
The State case was that the appellant and Santos were in joint possession of the drugs and that the transportation of the drugs into Western Australia was done in furtherance of a joint criminal enterprise that involved the appellant, Santos and other participants.
Police located in the appellant's possession a counterfeit New South Wales driver's licence, a mobile telephone that had been activated the previous day and which was in a false name and a bag containing a small number of clothes. The appellant was not in possession of credit cards or cash.
Data on the mobile telephone in the appellant's possession and further data from Optus revealed that it had been used to contact two individuals by the name of 'Oz' and 'Bowa'. There was further evidence in the prosecution case to suggest that these individuals had an interest in the drugs on the aircraft.
Santos was in possession of a significant quantity of cash and two mobile telephones that were registered in fictitious names. See Santos v The State of Western Australia [No 2] [2013] WASCA 39.
The appellant was arrested at Jandakot Airport. Police questioned the appellant and Santos. The questioning was recorded on video. The appellant largely responded to police questions with 'no comment'.
The appellant's defence at trial relied to a very significant extent on evidence from the appellant. The defence case was that the appellant believed that what was being carried on the aircraft was money, not prohibited drugs. The appellant also relied on the defence of duress under s 31(3) of the Criminal Code (WA) (the Code) as it stood at the time of the offending. The appellant's evidence was, in essence, that he did what he was asked by a man called Bowa who had threatened to kill him and rape his mother.
The appellant was remanded in custody after his arrest. He was visited in gaol by a man named Adam Cirello (spelled 'Ciraolo' in the source documents), described by the appellant as his best friend. A listening device recorded conversations between the men, five of which recordings were tendered in evidence at trial. The appellant did not say anything to Mr Cirello about the alleged threats and discussed with him the prospect of pleading guilty and how to reduce his sentence. The appellant also said that he had used the false identification on previous occasions to travel to Perth.
As acknowledged by the appellant's counsel at trial, a deliberate forensic decision was made not to alert the prosecution to the nature of the duress defence prior to the appellant giving evidence (ts 1811).
In opening the State case, the prosecutor referred to the fact that when interviewed by police at Jandakot Airport, the appellant for the most part answered 'no comment' to the questions put to him. However, the prosecutor told the jury that no adverse inference could be drawn from the no comment responses to police questions.
An edited version of the interview was played to the jury and tendered in evidence. Immediately after the interview had been played and tendered, the trial judge directed the jury that they should not draw an adverse inference against the appellant on the occasions when he exercised his right to silence (ts 1050).
The appellant's evidence‑in‑chief
The appellant's evidence‑in‑chief was to the following effect. He was a user of drugs and was indebted to Bowa in the sum of approximately $20,000. Bowa was pressing him for payment of the debt. After his second meeting with Bowa he was 'freaking out' and knew he was in serious trouble (ts 1553). He met with Bowa again two days before he flew to Perth. Bowa instructed him (the appellant) to buy three mobile phones which the appellant did, using false names. He used false names because Bowa had told him to do so (ts 1557). The appellant met up with Bowa the following day. In the intervening period he was feeling very very scared and freaking out (ts 1558). Bowa told the appellant that he wanted the appellant to deliver some money to someone in Perth. The appellant told Bowa he did not want to do it. When asked about Bowa's response to that, the appellant said:
Bowa grabbed me by the throat and he pulled out a handgun and he put it to my stomach, and he told me straight out, 'You've got no fucking choice what you do.' He said, 'I know where you live.' He said that he'll rape my mother, and he said I had to get on the plane.
The appellant said he was freaking out, felt he did not have a choice because of Bowa's threats and because '[y]ou can't mess with these guys. They're very, very serious' (ts 1559).
The appellant drove to his home, followed by Bowa and Bowa's offsider Oz. The appellant lived with his mother, his sister and her husband. He went inside the house, smoked two cones of marijuana, took two sleeping tablets, had a short conversation with his brother‑in‑law, packed a bag and then left the house. He did not mention the threats to anyone in the house or call the police. The appellant was asked why he did not call the police. He responded:
I couldn't call the police with these guys.
Yes, but why not---Because you just can't, man.
Where was Bowa at that stage---He was out the front of my house. He was with Oz.
What did you think would happen if you took too long---He would come in my house.
And what were you concerned about---My mother.
What were you concerned might happen---What he said.
Which was---He was going to rape her (ts 1561).
The appellant then travelled with Bowa and Oz to Bankstown Airport, arriving at around 3.00 am on 5 March 2008.
Towards the end of his evidence‑in‑chief the appellant was asked by his counsel about why he declined to answer questions put to him by police at Jandakot Airport. The evidence is as follows:
All right. Now, you accept and tell the members of the jury that you said 'no comment' quite a lot during the course of that interview?‑‑‑I did.
Can you explain to the members of the jury why you exercised your right to silence---I was scared.
Of what---Of ‑ of ‑ of Bowa and ‑ you know, if I started talking---
Okay. At that stage where's mum---Mum's in Sydney.
Right. Could you do anything to protect her---No.
But you do accept you did say to the police officers that you had put the bag [containing the drugs] in the plane; correct---I accept that I did say that.
Why did you say that---Because I did (ts 1573).
The appellant was not cross‑examined on this evidence.
The appellant's counsel referred to this evidence in his closing address. He said:
[W]hen Detective Morrish opens a bag and says, 'We've got a problem here.' The first thing my client says in quite an animated way is, 'Fuck off.' It was a spontaneous response. I suggest to you it wasn't the response of somebody who was expecting to see 32‑odd kilos of drugs packed in a bag. It was clearly after that time that he started becoming more talkative, because clearly, a lot of drugs in that bag … So in the context of considering his credibility, his honesty, his reliability, consider the things that he did admit to [that he packed the black bag onto the plane] and consider the situation as it … presented itself. This is a bloke who thought he was bringing money over to Perth. He's dealing with serious people. He's not going to open his mouth and start blabbering about things that had happened in Sydney, particularly at a time when he ‑ clearly, his mother would not be safe if he started talking. So what'd he do? He initially keeps his mouth shut. You can't draw any adverse inference against him for that (ts 54).
The ground of appeal
The appellant contends that the trial judge made a wrong decision on a question of law, or alternatively that there was a miscarriage of justice, in directing the jury that in making an assessment of the veracity of the appellant's evidence it was open to them to take into account the fact that the appellant did not mention to police when arrested that the reason why he was on the flight on 5 March 2008 was because threats were made to him.
The trial judge's directions
In the context of referring to the different categories of evidence at trial and how it could be used, the trial judge referred to what he described as the 'false mobile telephones' located in the possession of the appellant and Santos on their arrival at Jandakot Airport. The first of the challenged directions is as follows:
The evidence is and both accused accept that when they were intercepted at Jandakot Airport they were carrying and by implication were therefore using false and fictitious mobile telephones. Obviously, they were not asked about this at the time because the police did not know what they now know about those telephones and the content and timing of certain messages with certain unknown third parties. It is a fact, bearing in mind that Mr Micalizzi exercised his right not to answer some questions on the tarmac, which as I have said is his legal right and about which something ‑ I will say more in a moment, that he did not say how he came to be in possession of the phone he had and how, according to his evidence, he had obtained it only because Bowa had forced him to do so (ts 1891). (emphasis added)
The appellant's evidence relating to the mobile telephone in his possession was part of his duress defence.
The second passage complained of was in the course of referring to the State case. The trial judge said:
The State also says in relation to the threats that Mr Micalizzi says he was operating under at the time that you might have thought he might have been relieved to see police officers at Jandakot when he got there and that he might have taken the opportunity to explain that he was only there because of threats made to him, bearing in mind, of course, that he has, as you know, the right to silence and he didn't have to answer any questions to the police officers when they asked him about the circumstances and the luggage on the aeroplane (ts 1967 ‑ 1968).
Whether or not that was in fact a State submission is not in issue in the appeal. The third passage complained of was in the course of the trial judge's direction as to the defence case of duress. After summarising the appellant's evidence the trial judge said that he did not tell his brother‑in‑law about Bowa's threats and that the appellant did not take the opportunity to contact the police or inform anybody of his predicament. The trial judge continued:
You might also consider, as I have mentioned, that on being apprehended by the police on arrival at Jandakot Airport, that in those circumstances he might have wanted to tell them about why he was there on that aircraft. Bear in mind, of course, as you know, he did not have to speak to the police, and you might think, in view of his evidence, that he was a drug user … that he was unlikely to speak to the police. Members of the jury, these are all matters for you to consider, if you wish, in your deliberations about whether the threats were in fact made by Bowa, and if so, whether Mr Micalizzi's subsequent actions were reasonably necessary in order to respond to and neutralise those threats. Mr Micalizzi said he didn't believe he could call the police because Bowa and Oz were outside (ts 1984).
There was no objection on behalf of the appellant at trial to these aspects of the trial judge's summing up.
The right to silence
A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence: Petty v The Queen (1991) 173 CLR 95, 99. The right to silence means that:
(a)no adverse inference can be drawn against an accused person by reason of his or her failure answer such questions or provide such information;
(b)it is not permissible to rely on silence as a basis for assessing the weight to be given to an accused's evidence; in particular it should not be suggested that previous silence about a defence raised at trial provides a basis for inferring that the defence is a new invention or is suspect;
(c)it should not be suggested, either by evidence led or questions asked by the State or comments made by the trial judge or the prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt.
The right to silence is connected with the absence of any right in the State to compulsorily interrogate suspects: Petty (118).
Duress
Section 31(3) of the Code, as it was prior to its repeal by the Criminal Law Amendment (Homicide) Act 2008 (WA), provided:
A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say ‑
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence.
This court considered the defence of duress in s 31(3) in Smith v The State of Western Australia [2010] WASCA 205. As noted in that case:
[In the event that s 31(3) becomes an additional avenue for raising the defence of duress it] must be construed against the background of the strong policy considerations in that area of the law. They were identified by Gleeson CJ in Rogers v The Queen (1996) 86 A Crim R 542 and King CJ in R v Brown (1986) 43 SASR 33, both of which were approved by the High Court in Taiapa v The Queen [2009] HCA 53 [31] ‑ [32], [36]. King CJ said in R v Brown:
'The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation (40).'
What is reasonably necessary is a value judgment involving a question of law so there must be evidence that, in the view of the court, would justify the jury in finding that the conduct was reasonably necessary: Taiapa [17] ‑ [18].
The court in Smith also held that the expression 'in order to' required that there be a causal connection between the relevant threat and the accused's prima facie criminal act or omission and that, as a matter of fact, it is unlikely the objective test could be satisfied in the absence of evidence from the accused as to what caused him to engage in the conduct in question [13].
It is accepted by the parties that the appellant was under arrest when he was being questioned by police at Jandakot Airport. Accordingly, the appellant's evidence‑in‑chief as to why he did not then tell police about the threats was not relevant to establishing an evidentiary basis for the defence of duress, the offences having been completed at that stage.
Analysis
It is clear from the questions asked of the appellant in examination‑in‑chief that counsel for the appellant made a deliberate forensic decision to adduce in evidence‑in‑chief the appellant's explanation for not disclosing to police at Jandakot Airport the fact of and foundation for the claim that he had acted under duress (the appellant's explanation evidence). The appellant invites this court to consider and determine why counsel for the appellant made that forensic decision. It is the appellant's contention that counsel acted under the misapprehension that the evidence was necessary to discharge the evidentiary burden in connection with the duress defence.
The appellant's approach is misconceived. With limited exceptions that are not presently relevant, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel: Nudd v The Queen (2006) 80 ALJR 614 [9]. The correct focus is not on why counsel acted as he did but whether the decision to do so was, in all the circumstances, an objectively rational forensic judgment: Patel v The Queen [2012] HCA 29 [114]. In my view it was.
As a practical matter, the logical first question for the jury was whether to accept, not reject, or reject the appellant's evidence that he thought he was transporting money not prohibited drugs. It is only if the jury positively rejected the appellant's evidence on that subject that it would be necessary to consider the defence of duress. At its optimistic highest, the duress defence was very weak. Up to the time at which the appellant's explanation evidence was adduced, the jury had been told repeatedly that it could not draw any adverse inference against the appellant from his 'no comment' responses to police questions. There was a rational forensic reason for adducing the appellant's explanation evidence. It was capable of conveying to the jury that at the time the appellant was being questioned at Jandakot Airport:
(a)the appellant's mother was still at risk of rape or other serious harm from Bowa or his associates;
(b)the appellant, under arrest in Perth, was in no position to protect his mother; and
(c)saying or doing anything other than answering 'no comment' to police may have endangered his mother, if not himself.
That is, the appellant's explanation evidence had the capacity to buttress the appellant's evidence as to the nature and extent of the threats made by Bowa and their effect on him leading up to and during the flight. In the circumstances it was an objectively rational forensic decision to buttress the credibility of the duress defence.
The appellant having voluntarily proffered, as part of a forensic strategy, an explanation for why he did not inform police of the threats and seek their assistance, inviting the jury to accept his explanation as evidence of the truth of his evidence on duress, he cannot complain when that evidence is challenged. In particular, it was permissible to challenge the appellant's explanation evidence on the basis that his silence at Jandakot Airport, being consistent with his prior silence on the subject, was a basis for disbelieving the appellant's evidence on duress. That is, the effect of the rational forensic strategy was to waive the appellant's right to silence, albeit limited to the occasion and subject matter in question. To the appellant's benefit, the trial judge did not proceed on the basis of a waiver, but continued to remind the jury in his summing up on the subject that the appellant retained the right to silence.
There being no relevant error of law or miscarriage of justice, the appeal must be dismissed.
BUSS JA: This is an appeal against conviction.
The appellant and Jamieson Andrew Santos were charged with two counts in an indictment dated 27 February 2009 and filed in the District Court.
Count 1 alleged that on 5 March 2008, at Jandakot, the appellant and Mr Santos had in their possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act). Count 2 alleged that on the same date and at the same place, the appellant and Mr Santos had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
After a joint trial before Stevenson DCJ and a jury, both the appellant and Mr Santos were convicted on each count.
The appellant alleges in essence that the trial judge erroneously gave the jury directions in his summing up that infringed the appellant's right to silence. It is said that the directions occasioned a miscarriage of justice.
I agree with McLure P that the appeal should be dismissed. My reasons are as follows.
The circumstances of the offences as alleged by the State
The circumstances of the offences, as alleged by the State, are, relevantly, as follows.
On 5 March 2008, at about 3.00 am, the appellant and Mr Santos departed from Bankstown airport, New South Wales, in a Piper Aztec light aircraft. Mr Santos was the pilot and the appellant was a passenger. No-one else was on board. On 5 March 2008, at about 3.50 pm - 4.00 pm, the aircraft landed at Jandakot airport, Western Australia.
Upon arrival at Jandakot airport, the appellant and Mr Santos were apprehended by police. They were cautioned. The aircraft was searched and a black sports bag was located in its cargo hold. The bag contained vacuum sealed bags with, in total, about 30,000 ecstasy tablets weighing 8.843 kg and other vacuum sealed bags with, in total, 21.85 kg of methylamphetamine. The estimated value of the drugs exceeded $7 million. The search was carried out in the presence of the appellant and Mr Santos.
The appellant and Mr Santos participated in a video/audio recorded interview with the police at Jandakot airport. By that time they were under arrest.
Each of the appellant and Mr Santos denied any knowledge of the black sports bag or its contents. There was no forensic evidence to link either of them to the bag or the prohibited drugs it contained.
The police found Mr Santos in possession of two mobile telephones. One was activated on 17 January 2008 and the other on 12 June 2007. Both telephones were registered in names and at addresses unconnected to him.
The police also found Mr Santos in possession of almost $9,000 cash. He had paid about $1,600 cash for the fuel required to fly from Bankstown to Jandakot.
During his interview, Mr Santos told the police, relevantly:
(a)He had flown from Bankstown to Jandakot, leaving in the early hours of 5 March 2008.
(b)He had one passenger on the flight.
(c)He did not know the name of his passenger. They did not speak during the flight. It was 'too loud' to talk.
(d)The passenger had agreed to pay for the cost of the fuel, but no payment had yet been made.
(e)He did not put the black sports bag on the aircraft. He did not see his passenger put the bag on the aircraft, but it must have been the passenger who did this.
(f)He had undertaken about three trips to Perth by light aircraft in the past 12 months.
(g)He was trying to increase his flying hours in order to obtain a commercial pilot's licence.
(h)He was bankrupt and currently 'lived off the charity' of his family.
The police found the appellant in possession of a false New South Wales driver's licence in the name of Tony Rizzo.
The appellant did not have any cash or credit cards.
The police also found the appellant in possession of a mobile telephone. He activated this telephone on 4 March 2008. It was registered in a female's name and at an address in New South Wales where a female by that name was unknown.
An analysis of records relating to the appellant's mobile telephone revealed:
(a)The appellant had been in contact with two people ('Oz' and 'Bowa'), each of whom used a mobile telephone, during the flight from Bankstown to Jandakot.
(b)These two other mobile telephones were activated on 4 March 2008 at similar times and locations to the appellant's mobile telephone.
(c)The two other mobile telephones were used at or about the time of the appellant's arrest on 5 March 2008.
(d)The two other mobile telephones were registered in names and at addresses in New South Wales. People by those names were unknown at the addresses in question.
(e)Telephone contact between the appellant, Oz and Bowa on 5 March 2008, including immediately before his arrest, was prolific. More than 100 contacts were made between these people in a period of about 15 hours.
(f)SMS exchanges between the appellant and Oz, and between the appellant and Bowa, established that the appellant was to meet both Oz and Bowa in Perth upon his arrival at Jandakot on 5 March 2008.
During his interview, the appellant generally made no comment apart from, relevantly:
(a)denying that the black sports bag and its contents belonged to him;
(b)admitting that he may have carried the bag onto the aircraft for the purpose of assisting Mr Santos to load the aircraft for the flight; and
(c)uttering the words 'fuck off' when one of the police officers opened the bag and said, 'We've got a problem here', and revealed the prohibited drugs.
The State's case at trial
The State's case at trial was that the appellant and Mr Santos were jointly in possession of the prohibited drugs found on the aircraft.
The State contended that the transport of the drugs from Bankstown airport to Jandakot airport was likely to have been part of a joint criminal enterprise, and that this enterprise included other participants than the appellant and Mr Santos.
The State's alternative case was that one or other of the appellant and Mr Santos was in possession of the prohibited drugs.
The appellant's case at trial
The appellant's case at trial was that he was not at any time in possession of the prohibited drugs found in the black sports bag.
More particularly, the defence case was that:
(a)the appellant believed that money, and not prohibited drugs, was in the bag;
(b)alternatively, if the jury was satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs, he was not criminally responsible in that it was reasonably necessary for him to be in possession of the drugs in order to resist actual and unlawful violence threatened to him, or to another person in his presence: s 31(3) of the Criminal Code (WA) (repealed).
Section 31(3), as enacted at the material time, provided:
A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say ‑
…
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence.
The appellant's case relied, almost entirely, on sworn evidence given by the appellant at the trial.
The appellant gave evidence to the effect that he was a passenger on the aircraft only because a man named Bowa had threatened to kill him and rape his mother. He maintained that Bowa had made these threats in order to force him to transport what he believed was money from Sydney to Perth, so that the money could be used to repay a debt owed by Bowa. The appellant denied that he knew or believed there were prohibited drugs in the bag found on the aircraft.
The interview between the police and the appellant and Mr Santos
The prosecutor tendered, as part of the State's case, an edited version of the interview between the police and the appellant and Mr Santos at Jandakot airport.
During the interview, the following exchange occurred between police officers and the appellant when the police officers opened the black sports bag:
DETECTIVE PAINI: | All right. Well, what we'll do now, we'll put, ah, new - new set of gloves of, so, there's no issue of transference of any DNA, or, like material - we're gonna open this bag now. Is there anything in there that you'd like to declare before we open it? |
MR MICALIZZI: | I've just seen the bags. |
DETECTIVE PAINI: | Is there any - any safety issues we need to be aware of? |
MR MICALIZZI: | I would not have a clue - I couldn't tell you. |
DETECTIVE PAINI: | All right, but, I just - just wanna ask. |
MR MICALIZZI: | Yeah. |
DETECTIVE MORRISH: | Ah, we have an issue here. |
DETECTIVE MCKENNA: | We do indeed. |
DETECTIVE MORRISH: | Just step back - step back, we - grab some more gloves please. Gav - some bigger one's if you want. For the tape I'll pull the cloth apart. |
MR MICALIZZI: | Fuck off. |
DETECTIVE PAINI: | Now when we lifted that why did you say 'Fuck off?' then? |
MR MICALIZZI: | (indistinct). |
DETECTIVE PAINI: | Well, what's normal, I mean, you - you - you didn't know anything about this bag before, so, how would you know what would be normal? |
DETECTIVE MORRISH: | Yeah, just hang on there, mate, for a minute. |
MR MICALIZZI: | When you, we'll just pull something back, and, show what that is. |
DETECTIVE PAINI: | What do you think it is? |
MR MICALIZZI: | Well, what do they look like to you? |
DETECTIVE PAINI: | Well, they're tablets (20 ‑ 22). |
Immediately after the video/audio record of the interview was played and tendered, the trial judge directed the jury that it 'should not draw any inference against' the appellant or Mr Santos for exercising his right to silence 'because he did not have to answer those questions' (ts 1050).
The conversations between the appellant and Adam Cirello
The appellant and Mr Santos were arrested on 5 March 2008 and remanded in custody.
The appellant was visited in prison on numerous occasions by a man named Adam Cirello. The appellant said in evidence at trial that Mr Cirello was his best friend (ts 1574).
A lawfully installed listening device recorded conversations between the appellant and Mr Cirello at the prison. Five of these recordings related to the period between 8 March 2008 and 18 April 2008 and were tendered by the prosecutor.
The State alleged that several conclusions could be drawn from the content of the recorded conversations, including that the appellant did not mention anything to Mr Cirello about the alleged threats made by Bowa.
The appellant's evidence as to his belief that the bag contained money and his evidence concerning the issue of duress
The appellant gave evidence that he was a drug user and that, by February 2008, he was indebted to a drug dealer named Bowa for the supply of drugs. The appellant obtained the drugs from 'runners' employed by Bowa and not from Bowa himself (ts 1546 ‑ 1547). He owed Bowa about $20,000 (ts 1548).
On the last occasion on which the appellant went to obtain drugs, Bowa was present (ts 1548). This was the first time the appellant had met him (ts 1673). Bowa told the appellant that 'enough was enough' and that he had two days to repay the debt. The appellant gave Bowa $2,000 that he had taken with him to obtain drugs (ts 1550). This was the first time that a demand for repayment of the debt had been made. There was no prior warning (ts 1676).
The appellant admitted in cross‑examination by the prosecutor that he did not make any effort to raise money to repay the debt (ts 1678). He admitted, in cross‑examination by Mr Santos' counsel, that he owned a motor vehicle worth about $10,000 ‑ $14,000 and a motor cycle worth about $5,000 ‑ $6,000.
Later, the appellant met with Bowa and said he did not have enough money to repay the debt. Bowa told him that this was not good enough and he would have to 'work off' the debt. The appellant said he would not deal in drugs, but Bowa replied that the appellant had no choice in the matter (ts 1552 ‑ 1553).
When the appellant next met with Bowa, he was told to purchase three mobile telephones and to 'sign them up'. He did so. The appellant purchased the telephones with his own money (ts 1611) and he registered them in false names and gave false addresses (ts 1556 ‑ 1557). The appellant gave the telephones to Bowa and one of his associates.
When the appellant next met with Bowa, Bowa told the appellant that he wanted him to deliver some money to a friend in Perth to whom Bowa owed a debt. Bowa said that a 'friend' of his flew a small plane and he would be flying the plane to Perth. When the appellant told Bowa that he did not want to take the money to Perth, Bowa grabbed him by the throat and put a handgun to his stomach. Bowa said that 'he had no fucking choice', 'I know where you live' and that he would rape the appellant's mother. Bowa told him to pack a bag and bring identification, but not to bring his wallet or mobile telephone (ts 1558 ‑ 1559). The appellant brought false identification.
The appellant then drove to his home, where he lived with his mother, his sister and her husband. Bowa, and his associate named Oz, followed in their vehicle. The appellant went inside the house, smoked two cones of cannabis, took two Xanax sleeping tablets and had a short conversation with his brother‑in‑law. The appellant packed a bag and left the house. He did not mention the alleged threats to anyone in the house or telephone the police.
The appellant got into Bowa and Oz's vehicle and was taken to a street, apparently in the vicinity of Bankstown airport. Mr Santos was waiting on the street with another man. Mr Santos and Bowa shook hands. The appellant was told to move a bag from another motor vehicle into Bowa and Oz's vehicle. Both vehicles then went to Bankstown airport.
At Bankstown airport, the appellant removed the bag from Bowa and Oz's vehicle and loaded it onto the aircraft. Bowa gave him a mobile telephone. He was introduced to Mr Santos. The appellant did not recall much about the flight from Bankstown to Jandakot because he had smoked the cones and taken the sleeping tablets.
The appellant did not at any time attempt to contact the police to endeavour to obtain protection for himself or his mother (ts 1694).
The right to silence
A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of the offence, the identity of the participants and the roles which they played. See Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, 99 (Mason CJ, Deane, Toohey & McHugh JJ).
There are, relevantly to this appeal, two aspects of the right to silence. First, no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. Secondly, it should not be suggested, either by evidence led by the State or by questions asked or comments made by the trial judge or the prosecutor, that an accused person's exercise of the right to silence may provide a basis for inferring a consciousness of guilt. For example, the State should not lead evidence that, when charged, the accused person made no reply, and the State should not suggest at the trial that previous silence by the accused person about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. See Petty (99); Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380 [54] ‑ [56] (Steytler J).
In Petty, Mason CJ, Deane, Toohey and McHugh JJ made these observations about the second aspect of the right to silence:
[T]he denial of the credibility of … [a] late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment (101).
The prosecutor's opening address: the right to silence
The prosecutor, in the course of commenting in her opening address about the appellant's interaction with the police at Jandakot airport, noted his right to silence:
Now, I want to start with [the appellant] and what he told the police on that day on the tarmac. Now, [the appellant], as a general proposition, he made, 'No comment' responses largely to the police questioning. What you need to understand is this. [The appellant] has a right to silence, so when police are asking him questions he can rightly say 'No comment.' You cannot draw an adverse inference against him because of that (ts 1006).
No opening address by defence counsel
Defence counsel (who was not counsel for the appellant in the appeal) elected not to make an opening address (ts 1015).
The appellant's evidence‑in‑chief: his silence upon arrival at Jandakot airport about the alleged duress
The appellant gave evidence‑in‑chief in relation to his silence, upon arrival at Jandakot airport, about the alleged duress, relevantly, as follows.
Defence counsel adduced evidence from the appellant as to his feelings upon seeing the police when the aircraft arrived at Jandakot airport and about his belief as to what the black sports bag contained:
The plane stops; correct---Yes.
And some policemen arrive---Yes.
How were you feeling at that point in time---I was freaking out.
What did you think at that stage was in the cargo hold of the plane in the black bag---Cash.
Why did you believe it to be cash---Because he told me it was going to be cash.
And when you said 'he', who was that---Bowa.
Did you at any stage suspect that there were drugs in the bag---Not for one second did I suspect that there were drugs in the bag (ts 1572 ‑ 1573).
Defence counsel then asked the appellant to explain why he had exercised his right to silence when interviewed by the police at Jandakot airport:
All right. Now, you accept and tell the members of the jury that you said 'no comment' quite a lot during the course of that interview---I did.
Can you explain to the members of the jury why you exercised your right to silence---I was scared.
Of what---Of ‑ of ‑ of Bowa and ‑ you know, if I started talking ‑ ‑ ‑
Okay. At that stage where's mum---Mum's in Sydney.
Right. Could you do anything to protect her---No (ts 1573).
The appellant's evidence‑in‑chief: the uttering of the words 'fuck off'
Next, defence counsel sought an explanation from the appellant as to why he uttered the words 'fuck off' when one of the police officers opened the black sports bag and said, 'We've got a problem here', and revealed the prohibited drugs:
When Detective Morrish opens the bag and says words to the effect of, 'We've got a problem here', you say the words 'fuck off' or words to that effect---Yes.
Can you explain why you said 'fuck off' when ‑ ‑ ----I didn't ‑ ‑ ‑
‑ ‑ ‑ the bag was opened---I didn't say that to anyone. I just said it like out of shock.
And why were you shocked at that point in time---Because I knew that they were drugs.
Prior to actually having seen that bag and gone 'fuck off', did you know what was in that ‑ did ‑ what did you believe to be in that bag---Cash (ts 1573).
The appellant's evidence‑in‑chief: his failure to mention to Mr Cirello the alleged duress
Defence counsel questioned the appellant about his conversations with Mr Cirello while he was in custody on remand. In particular, defence counsel asked the appellant to explain why he did not mention to Mr Cirello the alleged duress:
And can I ask you why at no stage did you mention [in] any of those conversations with Mr Cirello about the threats that had been previously made---Because he was in contact with Bowa or - he was in contact with someone that was directly in contact with Bowa.
And what did you think would happen if you started blabbing to your mate Adam [Cirello] about what had happened at Carss Park---Well, if these guys thought that I was talking, you know, something bad would have come out of it.
Where was your mum at that stage---In Sydney, alone.
And where were you---In Perth, in gaol.
Could you get out---No (ts 1574 ‑ 1575).
No cross‑examination by the prosecutor or counsel for Mr Santos about the appellant's exercise of his right to silence
Neither the prosecutor nor counsel for Mr Santos cross‑examined the appellant about the exercise of his right to silence.
The prosecutor's closing address
The prosecutor noted in her closing address (as she had in her opening address) that no adverse inference could be drawn against the appellant as a result of the exercise by him of his right to silence when questioned by the police at Jandakot airport:
Get to the airport and the police are there. You've seen [the appellant] on that video. Make your own assessment of that. Here's a man who's questioned by the police and the police are asking him a number of questions, and he largely says, 'No comment', which is his right. He has a right to silence. He has a right to say, 'No comment.' You cannot draw an adverse inference about that (ts 21).
Defence counsel's closing address
Defence counsel made these submissions in his closing address about the interaction between the appellant and the police at Jandakot airport, including the exercise by the appellant of his right to silence:
Consider what happened at Jandakot Airport. Consider it in this way. Generally, my client exercised his right to silence and that's his right. It's a right that we all have. It's a fundamental right. When a police officer asks you questions, you do not have to answer them. And in certain circumstances, he didn't and you cannot draw an adverse inference against him.
However, have a look at the way that he reacted in certain situations. Have a look at what happened - and if you watch video 2.1 and 2.2 again, have a look at his reaction when Detective Morrish opens a bag and says, 'We've got a problem here.' The first thing my client says in quite an animated way is, 'Fuck off.' It was a spontaneous response. I suggest to you it wasn't the response of somebody who was expecting to see 32-odd kilos of drugs packed in a bag. It was clearly after that time that he started becoming more talkative, because clearly, [there were] a lot of drugs in that bag. He didn't know about them. But the one thing he did know, is that he had touched the bag. He had packed that bag onto the plane. And the questions that he answered - he accepted, 'Yes, I loaded luggage onto the plane.' He accepted truthfully that he had done certain things.
So in the context of considering his credibility, his honesty, his reliability, consider the things that he did admit to and consider the situation … as it presented itself. This is a bloke who thought he was bringing money over to Perth. He's dealing with serious people. He's not going to open his mouth and start blabbering about things that had happened in Sydney, particularly at a time when … clearly, his mother would not be safe if he started talking. So what'd he do? He initially keeps his mouth shut. You can't draw any adverse inference against him for that. But when he realised what was going on … his spontaneous response was, 'Fuck off', or words to that ‑ and they were his precise words. It was a spontaneous response and it was the type of response you would expect from someone who was surprised at what they saw in the bag (ts 53 ‑ 54).
Defence counsel dealt with the appellant's failure to mention the alleged duress to Mr Cirello, as follows:
And he's criticised for not telling his mate, Cirello, but clearly Cirello is in contact with Bowa. Anything he said could have had a negative effect as far as the welfare of his mother is concerned (ts 66).
The trial judge's summing up
The trial judge mentioned in his summing up the interview between the police and the appellant and Mr Santos at Jandakot airport and, in that context, the right to silence:
You may view that search video in the jury room and you may draw whatever conclusions you wish in relation to each of the accused from that evidence, whether it be something they said or how they reacted or what they did or did not do in response to questions. Subject to the very important right that they each had, and which [the appellant] exercised in part, not to answer any questions if they wished (ts 1890). (emphasis added)
His Honour referred to the appellant's exercise of his right to silence when questioned about the mobile telephone in his possession:
The evidence is and both accused accept that when they were intercepted at Jandakot Airport they were carrying and by implication were therefore using false and fictitious mobile telephones. Obviously, they were not asked about this at the time because the police did not know what they now know about those telephones and the content and timing of certain messages with certain unknown third parties. It is a fact, bearing in mind that [the appellant] exercised his right not to answer some questions on the tarmac, which as I have said is his legal right and about which something ‑ I will say more in a moment, that he did not say how he came to be in possession of the phone he had and how, according to his evidence, he had obtained it only because Bowa had forced him to do so (ts 1891). (emphasis added)
The trial judge mentioned the right to silence again later in his summing up:
I'm now going to move to another part of the evidence before you in this trial. And that is the evidence which concerns the search video at Jandakot Airport in which both accused were asked questions by the police officers and in respect of which both accused rely for their defence of the State's case against them. As you know, [the appellant] in part exercised his right to silence during that interview at Jandakot Airport. And as I've told you, that is a right he has and again, you should not draw any adverse inference against him for exercising that right when he chose to do so.
Even though [the appellant] did give evidence, he also relies on what he said in that search video as evidence that he did tell the police that he did put the bag onto the aircraft. And also his evidence when he was shown the contents of that bag on the tarmac when it was opened by the police officers. It is for you to consider that exclamation of his at that time in relation to all of the evidence, and in relation to his evidence to you in court that at that time, and up until that time, he was of the belief that the bag contained cash, because that is what he says Bowa told him. His evidence to you was that for not one second did he suspect there were drugs in the bag (ts 1940). (emphasis added)
His Honour summarised for the jury what he understood was the State's case in relation to the alleged duress:
The State also does not accept that there was no reasonable possibility for [the appellant] to avoid doing what he did at the airport in relation to the flight on the basis, of course, that even though on the evidence of [the appellant], Bowa and Oz were waiting outside to take him to the airport, although on the evidence it appears he did not know which airport he was going to and only that he was going to Western Australia for a few days, that you should ask yourselves why would he then take the time to smoke two cones, take some sleeping tablets, have a discussion with his brother-in-law who was in the house at the time, and say he was going away for a few days and not say anything about the personal circumstances and the threats which were, on his evidence, operating on him and controlling and directing his behaviour at that point in time. So the State says you should when you consider all the evidence dispassionately reject the evidence of [the appellant] that he was acting under duress as a result of threats, which he says were made against him and his mother by Bowa …
The State also says in relation to the threats that [the appellant] says he was operating under at the time that you might have thought he might have been relieved to see police officers at Jandakot when he got there and that he might have taken the opportunity to explain that he was only there because of threats made to him, bearing in mind, of course, that he has, as you know, the right to silence and he didn't have to answer any questions to the police officers when they asked him about the circumstances and the luggage on the aeroplane (ts 1967 ‑ 1968). (emphasis added)
The trial judge also summarised the appellant's case:
[The appellant] says that the drugs in the bag were not in his possession because he had no knowledge that there were drugs in the bag that he put on board the aircraft. He says that at all relevant times until the bag was opened by the police officers at Jandakot Airport his belief was that it contained cash. He says that he did not have at any relevant time a belief that there was a likelihood or a real chance that the bag contained a substance which was a prohibited drug. He says that on the evidence in this trial and the evidence which he has given you, that the drugs in that bag were there on the basis that Mr Santos was the only person who had knowledge that the bag contained the drugs. In his evidence to you during the trial he explained to you what happened and the reason why he was on the flight on this occasion and that he was only there because of the threats made by Bowa against him and his mother. And that everything he did from the point that those threats were made was on the basis that he was acting or operating under those threats and that he had no choice but to do what he said he did, which he gave evidence to you about. He says that to the extent the State's case is a circumstantial case there is, on the evidence, nowhere to be found any direct admission by him that he had knowledge that the bag contained drugs. And he says that you cannot infer in the circumstances, based on all the evidence which concerns him, that he had such knowledge and therefore possession (ts 1971 ‑ 1972).
His Honour made these comments in relation to the alleged duress:
[The appellant] obviously did not indicate the true position that he was operating under at that point in time to his brother-in-law, and in particular, the threat with the gun that had just been pulled on him, which according to his evidence was causing him to 'freak out'. Also he did not obviously express any concern about the physical safety of his mother or that she might be at risk, and he obviously did not take the opportunity to contact the police or to inform anybody, even perhaps Mr Cirello, of his predicament and the circumstances that he was in and what was happening to him.
You might also consider, as I have mentioned, that on being apprehended by the police on arrival at Jandakot Airport, that in those circumstances he might have wanted to tell them about why he was there on that aircraft. Bear in mind, of course, as you know, he did not have to speak to the police, and you might think, in view of his evidence, that he was a drug user … that he was unlikely to speak to the police. Members of the jury, these are all matters for you to consider, if you wish, in your deliberations about whether the threats were in fact made by Bowa, and if so, whether [the appellant's] subsequent actions were reasonably necessary in order to respond to and neutralise those threats (ts 1983 ‑ 1984). (emphasis added)
The trial judge explained to the jury how the State might demonstrate that the appellant acted voluntarily in committing the alleged offence:
Firstly, as you will appreciate, the State might persuade you by reference to all the evidence that you should reject and not accept what [the appellant] says about the threats as being truthful and reliable because of an account of the events concerning Bowa. In this case, you should not need to consider the issue of duress because you would not have accepted the evidence of [the appellant] about those threats. Secondly, if you accept his evidence about these alleged events, then the State can still prove that he was not acting under duress at the material time, which is from the point onwards that the threats were made until the aircraft was intercepted on the ground at Jandakot Airport, if you find that the acts were not reasonably necessary to resist the threats because he had an opportunity, if he had wanted to, to act in other ways (ts 1984 ‑ 1985).
His Honour emphasised that the appellant did not have to 'establish that he was acting under duress' (ts 1984). Rather, it was necessary for the State to prove beyond reasonable doubt that the appellant was 'acting voluntarily at the relevant time and not under duress' (ts 1985).
Defence counsel sought a further direction or redirection from his Honour in relation to the alleged duress, namely that the jury would only need to consider duress if it was satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs:
RAFFERTY, MR: … There is one matter, sir. In relation to duress, your Honour neglected to mention to the members of the jury that they will only need to consider that defence if they are satisfied beyond a reasonable doubt that my client was in possession of the drugs, having regard to the extended definition of that word.
RAFFERTY, MR: Because obviously the first limb of his defence, as I explained the other day, was always knowledge. The second limb was duress and that will only arise as a defence to consider if they're satisfied beyond a reasonable doubt that he was in possession of a drug.
STEVENSON DCJ: All right. Thank you for that (ts 1994).
The trial judge agreed to give the jury a further direction (ts 1994), and his Honour did so as follows:
In relation to what I told you about duress and the reliance upon the threats by [the appellant] in his case, I told you that if you weren't satisfied that those threats were in fact made, then you wouldn't need to consider the issue of duress any further. It is also obviously the case that if you are not satisfied firstly that he was in possession of the drugs at the relevant time, then you would not need to … consider the issue of duress, because it would not arise in those circumstances (ts 1995).
Neither the prosecutor nor defence counsel sought any other redirection or additional direction on the alleged duress.
Also, neither the prosecutor nor defence counsel sought any redirection or additional direction in relation to the right to silence.
The ground of appeal
The appellant relies on one ground of appeal.
The ground alleges that the trial judge made a wrong decision on a question of law by directing the jury that it was open to it to take into account, in assessing the veracity of the appellant's evidence, the fact that the appellant did not mention to the police when he was arrested at Jandakot airport that the reason why he was on the flight was because threats had been made to him. The ground alleges, in the alternative, that his Honour's direction occasioned a miscarriage of justice.
The appellant's submissions
Counsel for the appellant relied, in support of the ground of appeal, on the passages from the trial judge's summing up which I have set out at [97], [99] and [101] above. According to counsel, these directions were erroneous in that they infringed the appellant's right to silence and were contrary to the principles enunciated in Petty. It was submitted that the directions in question impermissibly left it open to the jury to reason that the appellant's previous silence provided a basis for inferring that what he said in evidence at the trial about the alleged threats by Bowa was a new invention or was rendered suspect or unacceptable.
The merits of the ground of appeal
Defence counsel is an experienced criminal defence lawyer. He has been a prosecutor as well as a defence counsel.
It is readily apparent from the trial record that defence counsel adopted, relevantly, the following forensic strategy at the trial.
First, the primary basis for defending the counts in the indictment was that before the black sports bag was opened by the police at Jandakot airport:
(a)the appellant believed he was transporting cash from Sydney to Perth; and
(b)he did not believe there was a likelihood or a real chance that the bag contained prohibited drugs.
Secondly, the secondary (and alternative) basis for defending the counts was that if (contrary to the primary basis for defence) the jury was satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs, he was not criminally responsible in that it was reasonably necessary for him to be in possession of the drugs in order to resist the actual and unlawful violence threatened by Bowa against him and his mother.
Thirdly, defence counsel elected not to give an opening address about the defence case. See s 143(2) of the Criminal Procedure Act 2004 (WA).
Fourthly, it was necessary for the appellant to give sworn evidence at the trial to satisfy the evidential onus in relation to his alleged belief that he was transporting cash and his alleged defence of duress. There was no evidence, apart from the appellant's sworn evidence, on these issues. As to the necessity for evidence from the appellant about the alleged duress, see Smith v The State of Western Australia [2010] WASCA 205 [17] ‑ [18] (McLure P, Owen JA agreeing).
Fifthly, defence counsel decided to adduce evidence from the appellant, in his evidence‑in‑chief, as to why, at least in part, he had exercised his right to silence when interviewed by the police at Jandakot airport; in particular, why he did not tell the police at Jandakot airport about the actual and unlawful violence threatened by Bowa against him and his mother.
Sixthly, defence counsel was concerned to ensure that the trial judge directed the jury that it would only need to consider the defence of duress if it was satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs. At defence counsel's request, his Honour gave this direction.
In general, at a criminal trial the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See TKWJ, where Gleeson CJ explained:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.
Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice [16] - [17].
See also Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [95] (McHugh J), [107] (Hayne J, Gummow J agreeing); Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954 [114] (French CJ, Hayne, Kiefel & Bell JJ).
An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).
I am satisfied that, on an objective assessment of the trial record, defence counsel's decision to adduce evidence from the appellant, in his evidence‑in‑chief, as to why, at least in part, he had exercised his right to silence when interviewed by the police at Jandakot airport (in particular, why he did not tell the police at Jandakot airport about the alleged threats made by Bowa) was a rational tactical decision. In other words, the decision is capable of explanation on the basis that defence counsel was endeavouring to obtain a forensic advantage. The apparent rationale for defence counsel's decision is as follows.
First, the defence of duress was very weak.
It was very weak because, on his own admission:
(a)The appellant had not sought to realise any of his assets (notably, his motor vehicle and his motor cycle) in order to repay the $20,000 drug debt to Bowa.
(b)He had not sought to neutralise Bowa's alleged threats by contacting the police or telling his brother‑in‑law about them while Bowa and Oz were waiting in their vehicle outside his home. Instead, he smoked two cones of cannabis and took two Xanax sleeping tablets.
(c)He did not mention the alleged threats to his best friend, Mr Cirello, while he was in custody on remand.
The appellant was, however, willing at trial to reveal in the witness box the alleged threats made by Bowa.
Secondly, as a result of the direction requested by defence counsel and given by the trial judge, the jury would not consider duress unless it was satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs.
If the jury reached this conclusion it would necessarily have rejected the appellant's evidence about his belief that he was transporting cash from Sydney to Perth.
The rejection of the appellant's evidence about this belief would, no doubt, have detrimentally affected his credibility generally, including the credibility of the appellant's evidence about the alleged threats made by Bowa and whether his evidence on that issue could possibly be true.
Thirdly, defence counsel could reasonably have taken the view that if the defence of duress was to have any prospect of success then it was desirable for the appellant to endeavour to explain his ongoing failure to inform the police or Mr Cirello about the alleged threats by Bowa or to take any steps in relation to them, including his failure to inform the police at Jandakot airport about the alleged threats.
The appellant's explanation for failing to inform the police at Jandakot airport was in essence the gravity of the danger which Bowa posed to the safety of the appellant's mother, the anxiety experienced by the appellant, and his inability to protect his mother. It is apparent, on an objective assessment, that the object of defence counsel, in adducing the appellant's evidence about his failure to inform the police at Jandakot airport, was to demonstrate the consistency of his response to the alleged threats, and the consistency of his perception of the gravity of the danger posed by Bowa, during the very lengthy period between the making of the alleged threats and the appellant giving evidence at the trial. By this means, defence counsel sought to bolster a very weak line of defence.
In my opinion, defence counsel 'waived' the benefit at trial of the right to silence exercised by the appellant in relation to the alleged defence of duress when he was interviewed by the police at Jandakot airport. There was a 'waiver' of the benefit of that right in that defence counsel deliberately chose not to rely upon the benefit of the right at trial. He deliberately conducted the appellant's defence in a manner inconsistent with maintaining the benefit of the right.
Defence counsel's adoption of the rational tactical decision which I have described, in relation to the appellant's exercise of his right to silence during the police interview, permitted the prosecutor to cross‑examine the appellant on this point and entitled the trial judge to comment on it.
In the event, the prosecutor did not cross‑examine on the point.
The trial judge was entitled, in the circumstances, to instruct the jury that it was open to it to take into account, in assessing the veracity of the appellant's evidence, the fact that the appellant did not mention to the police, when he was arrested at Jandakot airport, that the reason why he was on the flight was because threats had been made to him.
His Honour's comments on this issue were unduly favourable to the appellant in that his Honour told the jury, in essence, that his comments were subject to the appellant's right not to speak to the police or answer any of their questions (ts 1891, 1967 ‑ 1968, 1983 ‑ 1984).
It is not now open to the appellant to shift his position on the importance to him of the benefit of the right to silence, and to contend in the appeal that a miscarriage of justice occurred at the trial as a result of the comments made by his Honour.
The trial judge did not make a relevant error of law and there was no miscarriage of justice. The ground of appeal fails.
The trial judge's misdescription of the State's case in relation to the alleged duress
The trial judge, in summarising the State's case in relation to the alleged duress, told the jury:
The State also says in relation to the threats that [the appellant] says he was operating under at the time that you might have thought he might have been relieved to see police officers at Jandakot when he got there and that he might have taken the opportunity to explain that he was only there because of threats made to him, bearing in mind, of course, that he has, as you know, the right to silence and he didn't have to answer any questions to the police officers when they asked him about the circumstances and the luggage on the aeroplane (ts 1967 ‑ 1968). (emphasis added)
This passage misdescribes the State's case on the alleged duress. The prosecutor did not contend, in her closing address, that the appellant might have been relieved to see police officers at Jandakot airport or that he might have taken the opportunity to explain that he was on the flight only because of the alleged threats.
The prosecutor merely said, relevantly:
We then get to where the police intercept the aircraft on the tarmac. Now, [the appellant] says to you, 'I had a couple of cones, a couple of sleeping tablets and I just wanted to be out of it for the trip.' Granted, he's been on that aircraft for some hours by the time he gets to Perth, but you'll recall his evidence was that he slept, he knows he stopped at two places, he only remembers one, so he wants you to believe that he's just out of it. Get to the airport and the police are there. You've seen [the appellant] on that video. Make your own assessment of that. Here's a man who's questioned by the police and the police are asking him a number of questions, and he largely says, 'No comment', which is his right. He has a right to silence. He has a right to say, 'No comment.' You cannot draw an adverse inference about that. But what's important is this: is that the police initially ask him questions about DNA on that bag and fingerprints on that bag, and he says, 'No comment.' The relevance of that is this: it gets his mind ticking, because when they question him about the DNA and the fingerprints later on, he in fact gives them a response. He says to them, 'Well, yeah, my prints or DNA might be on there because I ‑ no. I might have helped the pilot when I carried it onto the aircraft.' So this is a man that says that he's out of it, and yet he has the presence of mind, he has the mental gymnastics, to think about the police questioning and realise that when he's asked about it again, he chooses to answer with an explanation he thinks is consistent with innocence.
Now, the mental gymnastics that's required of [the appellant] at that point, somebody that's stoned, out of it, you might not think so. And you'll get to see him on the video, in any event, to make your own assessment about that.
The prosecution's case is that he's not out of it at all. He's got the presence of mind to choose what he answers and how he answers it and when he answers it (ts 21 ‑ 22).
However, nothing turns on his Honour's misdescription. The point is not raised in the ground of appeal. Also, it is a submission that, in the circumstances, would have been open to the prosecutor. Further, the passage in question does not, in substance, exceed the nature and character of the comments which his Honour was entitled, in the circumstances, to make.
Conclusion
I would dismiss the appeal.
MAZZA JA: I agree with McLure P and Buss JA that this appeal against conviction must be dismissed.
The factual background and what occurred at trial has been comprehensively described by each of McLure P and Buss JA. It is unnecessary to repeat what they have written. The effect of his Honour's directions was to instruct the jury that it may take into account the appellant's failure to tell the police why he was on the aircraft to assess the truthfulness of his evidence that he was acting under duress. Usually, such a direction would have been an error of law because it would have been a breach of the appellant's right to silence: Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95. However, the present case is unusual. For the reasons that follow I am of the opinion that, in the circumstances, his Honour's direction was not an error of law. Further, it did not give rise to a miscarriage of justice.
The case against the appellant was very strong. The appellant, in substantial debt to his drug dealer Bowa, was one of two occupants (the co‑accused Santos being the other) of a light aircraft engaged in a privately arranged flight across Australia. The flight began and ended at airports which might reasonably be thought not to be subject to the rigorous security and baggage checks which are routine in major airports. The only item of substance on board was a black bag which contained more than 30 kg of illicit drugs worth in excess of $7 million. The appellant conceded that he may well have, at some point, carried the bag. During the course of the flight and just after landing, over a period of approximately 15 hours, the appellant was in frequent contact with Bowa and his offsider, Oz. The police were at Jandakot airport when the aircraft arrived. The appellant was caught, in effect, red‑handed with the drugs. Later, while a remand prisoner, he discussed with his best friend, Adam Cirello, the prospect of pleading guilty to the drug charges that the police had laid.
The appellant's primary defence at trial, that he thought that the black bag contained money, not drugs, was weak. His alternative defence of duress, pursuant to s 31(3) of the Criminal Code (WA), as it then was, was even weaker. The weaknesses of this defence are accurately described by McLure P and Buss JA.
The appellant was represented at trial by experienced defence counsel who would unquestionably have understood the great difficulties the appellant faced, particularly with the duress defence.
An obvious forensic problem for the appellant was that the first time he raised the issue of duress was at his trial. Of course, in respect of the failure of the appellant to raise duress with the police upon his arrival at Jandakot airport, the appellant could have relied upon his right to silence. On the other hand, counsel may reasonably have considered that the appellant's silence could be turned to the appellant's advantage by using it to underscore how fearful the appellant was of Bowa and his associates and how seriously he took their threats. Defence counsel, it appears, took this strategy. He took a similar approach to deal with the appellant's failure to mention duress when he spoke to Mr Cirello.
Based on my review of the trial record, defence counsel made a deliberate choice to adduce evidence from the appellant as to the reasons why he did not tell the police about the duress he claimed he was under. That choice was made to obtain a forensic advantage for the appellant, namely, to bolster his (weak) defence of duress. It was a choice that was not without risk. The obvious risk was that the strategy would result in the appellant, in effect, waiving his right to silence to the extent necessary to deal with the defence of duress.
Minds might differ as to the wisdom of defence counsel's strategy. However, defence counsel has a wide discretion as to how to best run an accused's defence. It is counsel's responsibility to make tactical decisions and weigh up risks: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [16] (Gleeson CJ). It is not the role of this court to judge such decisions with the wisdom of hindsight and decide whether the decision was correct. It has been said many times that, in the context of the adversarial system of criminal justice, other than in exceptional circumstances, an accused person is bound by the conduct of their counsel. Where a rational tactical decision is made by counsel, the court is entitled to conclude that there is no unfairness: Patel v The Queen [2012] HCA 29; (2012) 290 ALR 189 [114] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, speaking objectively, any risk that flowed from defence counsel's decision to adduce evidence from the appellant explaining why he did not raise duress with the police might reasonably have been outweighed by the perceived advantage of the evidence.
The evidence having been reasonably adduced to gain a tactical advantage, the appellant could not legitimately complain about it being challenged. Nor can he legitimately complain about the evidence attracting some comment from his Honour. Once the appellant put the matter into issue as a relevant factor supporting duress, he, in substance, waived his right to silence insofar as duress was concerned. It was legitimate for his Honour to draw to the jury's attention the contrary argument that a person under genuine duress might have told the police about the circumstances in which he found himself. His Honour tempered what he said by reminding the jury of the appellant's right to silence. In light of the effective waiver, his Honour did not, as alleged by the appellant, err in law in his directions, nor did what he said give rise to any miscarriage of justice.
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