R v Ozcelik

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ozcelik [2000] NSWCCA 495

FILE NUMBER(S):
60368/00

HEARING DATE(S): 27/11/00

JUDGMENT DATE: 27/11/2000

PARTIES:
Regina v Cumali Ozcelik

JUDGMENT OF: Wood CJ at CL Dunford J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/2214

LOWER COURT JUDICIAL OFFICER: Howie DCJ

COUNSEL:
(Applicant): A C Haesler
(Crown): R A Hulme

SOLICITORS:
(Applicant): D J Humphreys
(Crown): S E O'Connor

CATCHWORDS:
SENTENCING - Severity appeal - trial counsel did not raise good character - whether miscarriage of justice.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
See paragraph 34

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60368/00

WOOD CJ at CL
DUNFORD J

CARRUTHERS AJ

Tuesday, 28 November 2000

REGINA v Cumali OZCELIK

JUDGMENT

CARRUTHERS AJ: Cumali Ozcelik appeals against his conviction on 27 March 2000 at the Sydney District Court on one count of Supply Prohibited Drug (heroin) pursuant to ss 25(1)/29 of the Drug Misuse and Trafficking Act 1985.
On 9 June 2000 his Honour, Judge Howie QC, the trial judge, sentenced the appellant to imprisonment for twenty three months to commence on 9 June 2000 and to expire on 8 May 2002. His Honour fixed a non-parole period of eleven months to commence on 9 June 2000 and to expire on 8 May 2001.
No application for leave to appeal against sentence has been lodged in the event that the appeal against conviction is dismissed.
The appellant was arraigned before Judge Howie and a jury of twelve at the Sydney District Court on 23 March 2000 on an indictment containing only one count which is referred to above. As indicated, the jury returned a verdict of guilty on 27 March 2000. That was at the conclusion of the third day of the trial, the weekend having intervened.
The appellant is of Turkish origin having been born on 10 May 1949. At the time of the subject offence he was living on his own in a house at Cabramatta. The relevant evidence at the trial can be relatively briefly stated.
On 24 June 1999 police went to the premises where the appellant resided in Cabramatta intending to search those premises, having formed the belief, it was said, that the appellant was supplying drugs from the premises. As it happened police met the appellant in the street as he was about to leave in his motor vehicle. They told him what they believed happened there and requested that they be permitted to search his premises. The appellant complied with this request and also a request that the police be permitted to search his person.
Bearing in mind that the appellant is a disability pensioner, the police found a remarkably large sum of money in his wallet. In the front of the wallet they found $905 and in the back of the wallet they found $1,950.
Whilst awaiting the arrival of a video camera and an independent officer to view the search in accordance with standard practice, the police officers entered the appellant's unit in order to secure them so that the search could take place.
Evidence was put before the court that in the course of this activity one of the police officers accidentally tripped on an object under the carpet. After the carpet was lifted, a round metal tin was located containing sixty one coloured balloon packages and one foil. Later investigation disclosed that the balloon packages and the foil contained a total weight of 12.32 grams of heroin.
Thus the Crown had the benefit of the supply provisions of the Drug Misuse and Trafficking Act. In any event the video and the independent officer arrived. An ERISP was conducted during which the appellant was questioned about the source of the money contained within the appellant's wallet. The appellant said that some of the money had been won playing poker machines at his club and part had been lent to him by a relative and some of it was his pension cheque. The appellant denied any knowledge of the existence of the tin.
At the trial the accused tendered poker machine slips indicating that he had recently won something to the order of $500 at his local club on the poker machines. He also gave evidence that he had borrowed something in the order of $900 from his brother and that the remainder of the money in the wallet was his, being an accumulation of pension money.
During the course of the search the police also located a set of Tanita electronic scales in a bedroom of the appellant's home.
Evidence was before the jury by an experienced police investigator in drug matters that the particular make and model of scales found on the premises was used by persons to weigh heroin and other cutting agents used in the packaging of heroin. The scales were capable of measuring up to 100 grams. In essence the appellant's explanation for the possession of the scales, the presence of which unquestionably presented serious difficulties for him, was that he had purchased them some years before in order to send them to an acquaintance in Turkey. This explanation prompted Judge Howie to comment during his remarks on sentence, "Unfortunately for the prisoner he had some difficulty in explaining to the jury why it was in those circumstances he still had possession of the set of scales".
At the trial the Crown relied, in order to establish possession, upon the actual finding of the tin with the drugs contained therein, the large sum of money located in the appellant's wallet and the presence of the scales. There were some difficulties in the Crown case which were exposed during the course of cross-examination by Counsel appearing for the appellant at the trial. There was the fact that the police alleged that they had discovered the tin containing the heroin accidentally prior to the video team arriving for the appropriate search in accordance with the normal procedure; further the scales had not been examined by an expert to determine whether the appellant's fingerprints were on them or whether there were traces of heroin on them. There was of course the fact that some explanation had been given for the possession of the scales and some explanation for the large amount of money found in the accused's wallet.
In his careful written submissions counsel for the appellant, who was not counsel at the trial said: -
"His Honour's summation to the Jury fairly put both the case for the Crown and the defence. It fairly reflects both the evidence, the issues in dispute and the applicable law.”
Having carefully read his summing up one would not seek to challenge that fair summary by counsel for the appellant. What then is the appellant's complaint. Reading the transcript of the trial one gets the impression that the case for the defence, such as it was, was conducted with some skill by the trial counsel. In the sentencing proceedings the appellant's counsel tendered three references, two references were from the appellant's ex wives and one was from a friend, an ex employer to the effect that he, the appellant was a responsible and largely trustworthy person and that the offence was out of character.
There is no evidence before this Court that the former employer would have been prepared to give evidence to the effect of this reference if requested to do so at the appellant's trial. There were two other documents, one was from a Miss Neslihan Scuro in the following terms:-
"I, Neslihan Scuro would like to state that I have known Cumali Ozcelik for 26 years. I was married to Cumali for fifteen years from 1975 to 1990. I have always known him to be a responsible person, husband and father. I believe that such an offence he has been charged with is so much out of character with his general behaviour. I will try to attend the court hearing if my health permits."
That was dated May 22, 2000.
The other reference was from Lei Ozcelik which reads:-
"I Lei Ozcelik would like to claim that I have known Cumali Ozcelik for ten years, and I was married to him from 1991 to 1997. As I can recall, Cumali Ozcelik has always been a responsible and law-abiding person. He has never been involved or attempted to be involved in any unlawful doing."
There is another line but it would have no relevance if Miss Ozcelik had been called and therefore I will omit it. She was of course Mr Ozcelik's second wife.
The appellant has two prior convictions. On 16 January 1989 at Parramatta Local Court he was convicted of assaulting police for which he was granted the benefit of a twelve months recognizance to be of good behaviour. Secondly, he was convicted on 4 October 1995 at Fairfield Local Court on one count of driving with mid range PCA. In this regard the appellant was fined $300 and disqualified from driving for six months. Of course, neither the appellant's prior record nor the references to which I have made reference were tendered during the course of the trial.
The appeal is confined to one ground namely that there was a miscarriage of justice in that the accused did not receive a fair trial because of the failure of counsel to call evidence of his good character.
So far as this Court is concerned the only evidence as to good character which would have been available to the accused at the trial is that of his former wives along the lines included in the references. This Court also received by consent an affidavit dated 20 November 2000 by counsel for the appellant at the trial who deposed:-
"During the course of the trial it did not occur to me to adduce evidence of the defendant's good character. The failure to call such evidence was not a tactical decision".
Thus it was argued before this Court that trial counsel's "failure to call essential and available evidence was and could only be seen to be in the context of this case as incompetent" see Regina v Birks (1990) 19 NSWLR 677. This "failure" was said to constitute a miscarriage of justice, justifying this Court in quashing the conviction.
Birks was referred to in Regina v Ranko Ignjatic (1993) 68 A Crim R 333 and Regina v D (1996) 86 A Crim R 41.
I note in passing that in considering the submissions one now has the benefit of the views expressed by the judgments of the High Court in Melbourne v R (1999) 198 CLR 1. The majority judgments in that case emphasise that there is no principle requiring judges to give directions in every case in which good character is raised, unless to do so assists in procuring a fair trial and the direction attracts attention to issues relevant at the trial.
The relevant principles of law which apply to the situation where there has been failure by trial counsel to call available witnesses in support of the appellant's good character are set out in D to which I have already made reference. In that case the appellant gave sworn evidence denying any sexual impropriety with his daughter in defence to an indictment containing a number of counts alleging sexual assaults against his daughter. To use the words of the headnote, "Impressive character evidence this could well have had a substantial effect upon the jury's verdict. No test of general application has ever been put forward as to whether an error made by counsel has led to a miscarriage of justice in a particular case. In this case there was a substantial chance, or there was a significant possibility, that the jury would have acquitted the appellant if this impressive evidence of good character had been given. The unexplained and inexplicable failure of counsel to call that evidence led to a miscarriage of justice.”
Thus the onus rests upon the appellant in this case to establish that the alleged failure of trial counsel to call evidence of good character resulted in a miscarriage of justice in that there was a substantial chance or a significant possibility that the jury would have acquitted the appellant if evidence of good character had been given.
For the benefit of this Court counsel for the appellant and counsel for the Crown have given some indication of what would have in all probability been the course of events if trial counsel had elected to call the character evidence which would have been available to him.
Mr Haesler, on behalf of the appellant, has frankly accepted that the correct tactical approach would have been for trial counsel to have led evidence from the police officers of the existence of the two prior convictions and it was better, he contended that this weakness - that was his expression - should have been disclosed by the defence. In the defence case the general good character of the appellant would have been raised: see Part 3.8 of the Evidence Act 1995. This would have included a reference to the fact that he had never been charged or convicted of any prior sexual offences.
Mr Hulme of counsel for the Crown has indicated that in all probability the cross-examination by the Crown Prosecutor would have been directed to the two prior offences as well as the unusual life style of the appellant which included living alone, mixing in the street with random people, and inviting them back to his home and allowing them, at their will to stay overnight in his home and sleeping wherever in his home was their fancy.
When one considers this array of evidence it is quite impossible, in my view, to conclude that the fact that trial counsel did not open the question of asserted good character could have led to a miscarriage of justice.
As counsel for the Crown has pointed out the type of good character evidence available to the appellant is minimal contrasted with the type of good character evidence which was available to the appellant in D and the other cases along the same lines. Further, the appellant would have suffered under what I consider to be the singular disadvantage that the jury would become aware of his prior convictions, particularly it might be thought, the offence of assaulting police.
Counsel for the Crown put to us that albeit those who spend their lives in the Criminal Courts dealing with very serious offences may be tempted to look upon the two convictions which the appellant possesses as not particularly serious, jurors may not take the same attitude.
Mr Haesler, on the other hand, has put to us an interesting argument that in this day and age the average juror dealing with drug offences such as the instant charge would not be concerned to the detriment of the accused by the fact that he or she had earlier convictions of the nature of those disclosed by the present appellant. So far as the instant case is concerned we will never know.
The evidence before this Court, as I have indicated is in my view completely insufficient to satisfy the demanding test set out in D and to reach the conclusion by the application of that test that there has been a miscarriage of justice. One is, perhaps constrained to observe that if trial counsel had opened the appellant's character and the appellant had been convicted, the form of the notice of appeal may have been the reverse of what this court is faced with. I only make that passing observation.
I propose, therefore, that the appeal be dismissed.
WOOD CJ at CL: I agree.
DUNFORD J: I also agree.
WOOD CJ at CL: The formal order of the court is that the application is dismissed.

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LAST UPDATED: 19/12/2000

[2000] NSWCCA 495

27 November 2000