Sanchez v R - [2009] NSWCCA 171

No judgment structure available for this case.

Reported Decision: 196 A Crim R 472

New South Wales

Court of Criminal Appeal

CITATION: Sanchez v R [2009] NSWCCA 171

HEARING DATE(S): 2 June 2009

JUDGMENT DATE:
2 July 2009

JUDGMENT OF: Campbell JA at 1; Latham J at 87; Harrison J at 88

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – evidence – confessions and admissions – right of silence – right at general law and under section 89 Evidence Act – whether trial judge’s direction to the jury infringed the accused’s right of silence – distinction between common law right of silence and section 89 Evidence Act - CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – particular grounds – misdirection and non-direction – general matters – failure to take objection to misdirection infringing the accused’s right of silence – operation of rule 4 Criminal Appeal Rules – whether misdirection as to the right of silence is a fundamental error leading to a miscarriage of justice - WORDS AND PHRASES – “right of silence” – “right to silence”

LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995 (Cth)

CATEGORY: Principal judgment

CASES CITED: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Glennon v The Queen (1994) 179 CLR 1
Jones v R [2005] NSWCCA 443
Keung, Bow, Liu v The Queen [2008] NSWCCA 193
Petty v The Queen (1991) 173 CLR 95
Picken v The Queen [2007] NSWCCA 319
R v Button [2002] NSWCCA 159; (2002) 54 NSWLR 455; (2002) 129 A Crim R 242
R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
R v Matthews (NSWCCA, 28 May 1996, unreported)
R v Reeves (1992) 29 NSWLR 109
Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Wilde v The Queen (1988) 164 CLR 365

PARTIES: Carlos Alberto Sanchez aka Carlos Alberto Sanchez-Cardona (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3555

COUNSEL: M Johnston (Appellant)
WJ Abraham QC (The Crown)

SOLICITORS: Legal Aid Commission NSW (Appellant)
Commonwealth DPP (The Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0246

LOWER COURT JUDICIAL OFFICER: McGuire A-DCJ

LOWER COURT DATE OF DECISION: 27/7/07

CCA 2007/3555

CAMPBELL JA
LATHAM J
HARRISON J
2 JULY 2009

Carlos Alberto SANCHEZ aka Carlos Alberto SANCHEZ-CARDONA v Regina

Judgment

:

Nature of the Appeal

2 The Appellant has been convicted in the District Court of New South Wales on a charge of importing a commercial quantity of a border-controlled drug, namely cocaine. There was no dispute at the trial that the Appellant had arrived at Sydney Airport on 19 October 2006 on a flight from Argentina, and that a quantity of cocaine, estimated to be 2.369 kgs, was found concealed in his luggage. The issue at the trial concerned whether he had knowledge of the presence of the cocaine or was reckless as to its presence.

3 The grounds of appeal relate to the adequacy of the trial judge’s directions to the jury.

4 One ground of appeal alleges that a miscarriage of justice arose from two omissions on the part of the trial judge, namely: (a) to give adequate directions on the right of silence, and (b) to give adequate directions on the inference that could be drawn from the Appellant’s exercise of his right of silence during official questioning (section 89 Evidence Act 1995 (Cth)).

5 The second ground of appeal is that a miscarriage of justice arose from a positive error of the trial judge, namely directing the jury that they could draw an adverse inference from the Appellant’s failure to raise a defence during his questioning by Customs and Federal Police.

6 The Appellant was represented by experienced counsel at the trial. That counsel, Mr Hanley, made no complaint about any of the alleged errors on the part of the trial judge that are the subject of the grounds of appeal. Thus, rule 4 of the Criminal Appeal Rules requires the Appellant to obtain leave from this Court to raise these grounds of appeal. The convenient course is to consider the question of leave concurrently with the merits of the appeal.

Circumstances of Arrival at Sydney Airport

7 Though at the time of his arrival in Sydney the Appellant’s home was in Colombia, he is a citizen of the United States of America and was travelling on a United States passport. There was evidence that when the Appellant arrived at Sydney Airport he was carrying as hand luggage a black laptop computer bag, a black backpack and a camera and related equipment. The laptop computer bag was sometimes referred to in evidence as a briefcase.

8 The Appellant’s passport and travel documents were tendered. His airline ticket had been issued in Panama on 16 October 2006. It related to a flight leaving Panama City on 17 October 2006 at 11:18 am, having a flight of 7 hours and 5 minutes to Buenos Aires, catching another flight that left Buenos Aires about 3½ hours later, then travelling another 19 hours (flying via Auckland) and arriving in Sydney at 8:00 am on 19 October 2006. He was booked to return to Buenos Aires on a flight that left Sydney at 9:30 am on 24 October 2006 for Buenos Aires, with a further flight on 25 October 2006 from Buenos Aires to Panama City. The arrival card that he filled out upon arrival in Sydney showed that he intended to stay in Australia for 10 days, for both business and a holiday.

9 On arrival the Appellant collected a suitcase that was wrapped in plastic from the luggage carousel. A Customs officer, Mr Tammareddi approached him, asked for his travel documents, and asked him some questions. Mr Tammareddi’s evidence included:

“And then I pointed to the, to his luggage and said, ‘Is this your luggage?’ He said, ‘Yes.’ And I said, ‘Did you pack the bags yourself?’ He said, ‘Yes.’ And I said, ‘Are you fully aware of the contents?’ He said, ‘Yes.’”

10 Mr Tammareddi removed the contents of the laptop computer bag, lifted the bag, and found it was unusually heavy. He called another customs officer, Ms Purcell, who took the empty laptop bag away. Mr Tammareddi’s evidence continued:

11 Part of Mr Tammareddi’s evidence about his conversation with the Appellant was:

“I said, ‘Why do you need so much baggage for a short stay of 10 days?’ He said, ‘One is my computer laptop briefcase, one is my camera equipment and one is my clothing.’”

12 After a short time Ms Purcell returned. Mr Tammareddi’s evidence continued:

“… Officer Purcell said to Mr Sanchez, ‘Hello sir, I have taken an x-ray image of the computer bag. It is quite thick, thick and quite heavy and thick in the lining. Do you know why that would be?’ And Mr Sanchez said, ‘It’s because of the padding for to [sic] the computer. It is a computer bag.’ Then officer Purcell said, ‘It’s 9.10am at the moment. I would like to take a closer look at this bag and your other luggage. And what is going to happen is we will take you to an interview room and finish the baggage exam under videotape.’”

13 Mr Tammareddi then took the Appellant to an interview room. Another Customs officer, Mr Koustoubardis came into that room soon after. The rest of the Appellant’s conversation with Customs officers was videorecorded. That videorecording and a transcript of it were admitted into evidence without objection.

14 The transcript records the following concerning the computer bag:

“KOUSTOUBARDIS:

TAMMAREDDI:

15 An initial test of the computer bag with an instrument that detects traces of narcotics was negative. Ms Purcell then used a knife to penetrate a part of the lining of the bag, and applied the detection instrument to the blade of the knife. The record of interview continues:

16 Later in the interview, the Customs officers took the plastic off the suitcase, and examined its contents. As well as various personal items, it contained a brown trolley bag. The customs interview proceeded:

17 While the brown bag was being examined, the Appellant was told that the Australian Federal Police “will come down and they’ll have a chat with you.” The interview continued:

18 After Ms Purcell had returned to the room with the suitcase and the brown bag, she informed the Appellant:

“Okay. We have inconsistencies again with this bag here sir. It looks like there’s a concealment of some sort in there. And I presume it’s the same as your brief case. The officer will repack the bag and we’ll take some photographs.”

19 The computer bag, when emptied of the contents but with its lining in place, weighed 4,386.7 grams. The brown bag, empty but with its lining intact, weighed 8,171.5 grams.

20 Physical examination showed that the lining of the computer bag, and the lining of the brown trolley bag, each contained foam pocket packages in which there were sheets of gel. Analysis of the gel showed it contained cocaine.

21 The total weight of the foam pockets and gel sheets removed from the computer bag was 2,844.8 grams. The total weight of the foam packets and gel sheets removed from the brown bag was 4,033.6 grams. The weight of gel sheets alone removed from the computer bag was 2,535.2 grams. The weight of gel sheets alone removed from the brown bag was 3,676.9 grams.

Evidence at the Trial – Mr Santamaria

22 Mr Santamaria, a Federal Agent with the Australian Federal Police, gave evidence in chief that he arrived at the interview room, cautioned the Appellant, arrested him, and then took him to the AFP room at the airport. There, the Appellant was given access to a telephone, and spoke to both Legal Aid, and the Colombian Consulate. Soon after, the Appellant declined to participate in a record of interview. Mr Santamaria gave no other evidence in chief about conversations with the Appellant.

23 In the course of Mr Santamaria’s cross-examination the following additional facts were elicited, concerning a time before the Appellant spoke to a solicitor from the Legal Aid Commission:

24 Later in the course of Mr Santamaria’s cross-examination by counsel for the Appellant, the following exchange occurred:

HIS HONOUR

[COUNSEL]

The Appellant’s Evidence at the Trial

25 The Appellant gave evidence at the trial. He was born in Pereira in Colombia, and had obtained a degree that qualified him as an industrial engineer. The Appellant said that he had served as a university professor, and that he had managed and conducted businesses in different parts of the world, including Madrid. In 2006 he was living once again in Pereira, Colombia.

26 He travelled to Panama City in June-July 2006 to investigate and possibly purchase equipment for a business he was thinking of setting up with his son. While in Panama City on that occasion he met and became friendly with a man called Jorge Giban Osorio and a friend of Jorge’s called Sandra. He did not know Sandra’s surname. He met them at an internet café that he frequented, where they appeared to be friends of the proprietor or manager. The Appellant had previously been involved in acquiring and setting up internet cafés, and Jorge and Sandra spoke to him about that.

27 The Appellant returned to Panama City on 10 October 2006, again in connection with purchase of equipment for the business he and his son were contemplating setting up. He met Jorge and Sandra again. On the night he arrived in Panama City, 10 October, they visited him at his hotel and proposed that he do for them a feasibility study on the setting up of a very large internet café in Sydney. They offered him US$5,000, plus payment of expenses, to carry out the study. They said that there was a person called Mr Pereira in Sydney who was a good friend of Jorge and who “will be like a chaperone to me, so I wouldn’t be wasting time locating places where it would be a waste of time.” Jorge and Sandra gave him US$2,500 in cash for an airline ticket. On making enquiries of a travel agent he found that the ticket from Panama City to Sydney would cost US$3,500. Jorge and Sandra arranged for an additional US$1,000 to be sent to the Appellant’s wife (who was still in Pereira, Colombia), and she transmitted it to him in Panama City. He intended to stay in Sydney for “15 to 30 days” and the return trip on the airline ticket that he purchased was one that could be changed. (It will be recalled that his airline ticket related to a return trip, leaving Sydney five days after he arrived.)

28 He gives no evidence of being given Mr Pereira’s telephone number, or any description of him. He had made a booking at a Sydney hotel, the Ibis, but the booking was not pre-paid. He said he expected to pay for the hotel with his own credit card. It was a coincidence that the man who was to help him in Sydney had the same name as that of the city in which the Appellant lived.

29 On the morning of 17 October Jorge and Sandra picked him up from his Panama City hotel and drove him to the airport. On the way Sandra gave him a new computer bag, and packed the contents of his old computer bag into the new computer bag for him. The computer bag contained not only his laptop computer, but also various leads and other computer-related items. He did not notice that the new computer bag was any heavier than his old computer bag.

30 Sandra also gave him the brown bag in the course of the trip to the airport, and told him that Mr Pereira had left it on a previous trip to Panama City. The brown bag was empty. Sandra opened his suitcase, and packed it inside. To make room for it, she took out a coat, which the Appellant then carried to Australia as hand luggage. On arrival at the airport in Panama City the appellant noticed that there was a bump in his suitcase so he opened it and rearranged the contents to make them level, in the course of which he handled the leather bag “and I made a quick check of things inside the leather bag and I didn’t notice anything wrong with it”. He then wrapped his suitcase in the plastic wrapping.

31 One of the documents in his possession when he landed in Australia was a piece of paper on which were written the names of various Sydney tourist attractions, and the names and approximate locations of three Sydney universities. He said these were notes that he made arising from a conversation with a man he met on the plane. He said he had asked that man about tertiary education:

…

Q. And is there any reason why, if you were planning to maybe come to Australia in the future, why you were looking at universities?

32 In cross-examination he agreed that he was an experienced traveller, and was aware of warnings about taking items for other people, and was aware that that was because of danger “of it being drugs”. He said “Yes there is a lot of signs at airports and all over the place about it, yes.” However he said it did not cross his mind that he was being asked to take a bag of drugs into Australia.

33 He was cross-examined about the occasion when he levelled out the bump in his suitcase, that involved rearranging the brown bag inside the suitcase:

34 He agreed he did not know any details about the business of Jorge and Sandra, did not make any enquiries to ascertain any details about their business, and did not know if they had any other businesses in Panama City, or anywhere else in the world. His arrangement with Jorge and Sandra was verbal, and he agreed he had no guarantee that on his return he would be paid the US$5,000. He did not do any research about Jorge and Sandra. He accepted that he had never been to Sydney before, he did not conduct any research prior to coming to Australia on the feasibility of setting up an internet café in Australia, and had done no research about Sydney before coming to Australia. His cross-examination included:

35 His cross-examination included:

36 The cross-examination included:

The Crown Submissions

37 The Crown prosecutor submitted that the Appellant’s version of how he came to bring the two bags into Australia was unbelievable. In addressing the jury about the recorded interview with Customs officers, the Crown Prosecutor said:

“Now at that stage he knows that the other bag that was given to him by Sandra and Jorge has tested positive to cocaine. He may have thought it was a suspicion but it’s at least a suspicion of cocaine. It has been pierced, tested, tested positive to cocaine. It is heavy and the x-ray image reveals an inconsistency with an empty bag. Enough warning bells for him to know that there is a suspicion that that bag contained cocaine, and yet when the other bag also given to him by Sandra is set aside and the Customs officer said that it was also heavy and the Customs officer also had a suspicion about that he did not say at that time that he didn’t own the brown trolley bag and it had been given to him by someone else. When asked did he own the brown trolley bag he said ‘Yes.’”

38 The Crown also said:

“When alerted to the positive tests for cocaine in his laptop bag he did not advise that the brown bag was not his, even though he was given the opportunity.”

The Summing Up

39 In the course of summing up the judge said:

“When it became apparent that the customs officer or officers had detected what they believed to be drugs, at no stage did he protest that he was carrying the brown bag for somebody else, or that his computer bag had been packed by another who had just given it to him. Nowhere in his discussions with the customs officers, nor with Agent Santamaria did he ever raise these matters.

In the crown case as a matter of sheer commonsense you would expect some protest, some explanation, some effort to distance himself by telling the customs agents or the federal agents what he claims to be the truth, that is[,] how he came to be in the possession of those two bags. As to why he would not have raised that matter then and there, on the crown case is simply incredible.”

40 It is this portion of the summing up that the Appellant submits is a misdirection.

41 Later in the summing up the judge said:

“If you look at the DVD, Mr Hanley says that will demonstrate the accused showing no concern with the investigation of his bags.

…

As to what he said or did not say when being questioned by the customs agents, and his baggage examined, Mr Hanley put to you that you really would not expect chapter and verse from a man who had just spent many hours travelling from South America.”

That last remark relates to the Appellant having spent over 29 hours travelling from Panama City to Sydney.

Applicable Legal Principles

42 There was no dispute at the trial about the applicable legal principles. Insofar as they arise from the general law, they are stated by Mason CJ, Deane, Toohey and McHugh JJ in Petty v The Queen (1991) 173 CLR 95 at 99:

“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, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that 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. To draw such an adverse inference would be to erode the right of silence or to render it valueless. …

Nor should it be suggested that previous silence 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.”

43 Their Honours went on to recognise that some cases had recognised a “distinction between reliance on silence as evidence against the accused, and reliance on it by way of answer to or comment upon a defence raised for the first time … at the trial.” Their Honours said, at 101:

“… the denial of the credibility of that 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. Accordingly, the distinction is, in our view, unsound.”

44 Insofar as the principles were contained in statute at the time of the trial in June 2007, section 89 Evidence Act 1995 (Cth) provided:

“89 Evidence of silence

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a) to answer one or more questions; or

(b) to respond to a representation;

put or made to the party or other person in the course of official questioning.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section:

inference

(a) an inference of consciousness of guilt; or

(b) an inference relevant to a party’s credibility.”

45 The Dictionary to the Evidence Act defined “official questioning” as meaning “questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.” “Investigating official” was defined as:

“(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences.”

46 The argument proceeded on the assumption that the Customs officers involved in the present case were “investigating officials” within the meaning of this provision. Members of the Australian Federal Police are included in the definition of “police officer” in the Dictionary to the Evidence Act.

47 In Jones v R [2005] NSWCCA 443 McClellan CJ at CL (with whom Simpson and Hoeben JJ agreed) referred, (at [69]-[70]) to the statement by Gaudron A-CJ, Gummow, Kirby and Hayne JJ in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 630, [22] that the expression “right of silence”:

“… is a useful shorthand description for a number of different rules that apply in the criminal law. But referring, without more, to the ‘right to silence’ is not always a safe basis for reasoning to a conclusion in a particular case; the use of the expression ‘right to silence’ may obscure the particular rule or principle that is being applied.”

48 The authority that their Honours cite for the first sentence just quoted is the speech of Lord Mustill in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30-1. There, Lord Mustill stated that the “right of silence” covered at least six different types of immunity:

“(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.”

49 The third type of “right of silence” is a right that the person who is entitled to it actually exercises by choosing to not respond to questions. The sixth type of “right of silence” is not one that the person entitled to it needs to choose to exercise before it becomes operative. Rather, it is an entitlement that the accused person has concerning the manner in which his or her trial is conducted. The trial should be conducted in accordance with that sixth type of “right of silence” without the accused person taking any step or making any claim to require it to be so conducted.

50 In the present case, the third type of “right of silence” applied concerning questioning of the Appellant from at least the time that Ms Purcell warned him immediately after testing of the knife blade gave a positive result. The Appellant chose to exercise the third type of “right of silence” during his time with Mr Santamaria after his conversation with Legal Aid, but did not exercise it during his conversations with the Customs officers, or when he answered a question from Mr Santamaria before the Appellant spoke to Legal Aid.

51 The sixth type of “right of silence” was also a right the Appellant had in relation to the entire course of his trial. Even though the Appellant had, in this way, the sixth type of right of silence, his trial was conducted in accordance with it. At no time was adverse comment made at the trial about his having chosen not to answer questions from Mr Santamaria, and indeed the jury were told that he was entitled not to answer such questions.

52 The account of the “right of silence” given by the High Court majority in Petty extends even further than the sixth category identified by Lord Mustill in R v Director of Serious Fraud Office. The prohibition on suggesting “that previous silence 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” applies even if a person in authority has not asked an accused person a question in response to which one would expect, if the account the accused gave at his trial were true, that he would have given that account. Indeed, the prohibition applies even if a person in authority has not asked the accused person any questions at all. The prohibition applies to any suggestion that a defence might be rejected because the accused failed to say anything before the trial about the substance of the defence, whatever might have been the circumstances in which that failure to say anything might have occurred. Like Lord Mustill’s sixth type of right of silence, it does not need to be specifically claimed or exercised by an accused person, but is rather an entitlement about the manner in which his or her trial is conducted. Even a very talkative person can be considered “silent” within the meaning of this principle, if such conversation as he or she has before the trial does not include an account of the substance of the story that the accused tells in evidence at the trial, or has his or her counsel raise through cross-examination of other witnesses at the trial.

53 The operation of this type of “right of silence” is illustrated in Glennon v The Queen (1994) 179 CLR 1, where the trial judge had given a direction (recorded at 5):

“In testing the veracity of that defence brought before you in this court you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves, if this explanation is true, surely the sensible thing was to tell the police about it as soon as possible. Such a test of the veracity of the story does not depend on drawing any inferences from the exercise by the accused of his right to decline to answer questions but from producing here a story which if true he could have produced to the police but didn’t.”

“clearly erroneous”

54 An important qualification of the extent to which the “right of silence” prohibits comment at a trial upon failure of an accused to give his account of the facts at an earlier time is stated by McClellan CJ at CL in Jones at [75]:

“Of course, if the accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused’s credit, and as consciousness of guilt.”

55 What is meant by “break his or her silence” here is that the accused, during official questioning, chooses not to exercise the third type of right of silence, and in the course of answering the question gives an account that is inconsistent with his or her evidence at the trial. To similar effect is R v Reeves (1992) 29 NSWLR 109 at 111 per Mahoney JA, 114-115 per Hunt CJ at CL (with whom Badgery-Parker J agreed).

Timing of Direction on Right of Silence

56 In R v Reeves, Hunt CJ at CL (with whom Mahoney JA and Badgery-Parker J agreed), said (at 115E) that where:

R v Astill

57 In R v Matthews (NSWCCA, 28 May 1996, unreported) Badgery-Parker J (with whom Cole JA and Sperling J agreed) at 3 gave a slightly different emphasis:

Astill

58 On both formulations, at the time evidence is given that an accused has exercised a right of silence, a judge should give a direction to the jury that they are not to draw an adverse inference from the accused having done so. On both formulations, there is no rule to the effect that that warning must be repeated in the summing up. It may well often be desirable, and prudent to do so, but whether failure to do so involves appellable error will depend on the circumstances of the individual case.

Rule 4

59 Rule 4 Criminal Appeal Rules provides:

“No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal”.

60 In Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340, Ipp JA (with whom Buddin and Shaw JJ agreed) collected, at [93]-[98], authorities concerning rule 4 and expressed views that I gratefully adopt:

[93]

R v DH

Jeffrey

‘[It] is proper to emphasise the importance of the principle embodied in r 4.

In my opinion this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind.

…

Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. But infrequently, this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the Court of Appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4 …’”.

[94]

R v

Fuge

Abusafiah

Sanderson

Esposito

Abusafiah

Criminal Appeal Rules

Criminal Appeal Act

1912

Sanderson

Criminal Appeal Rules

Wood CJ at CL went on to refer to a number of other authorities where similar sentiments had been expressed.

[95]

Papakosmas v R

‘There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error or law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.’

[96]

R v Roberts

‘It is now more than ever imperative that trial counsel recognise and discharge the responsibility which they owe to the trial judge to provide whatever assistance he or she may require in order, so far as possible, to ensure that the directions to the jury are such that it can be said the accused has had a trial according to law.

For years this Court has emphasised in the strongest possible terms the need for trial counsel to take objections to the summing up or the admissibility of the evidence at the trial itself so that, if they are of substance, the judge may correct them and thus avoid appeals to this Court and possible second and sometimes third trials.’

R v Hokafonu

R v

Pearson

Giri

[97]

[98]

R v

Sanderson

‘It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.’”

61 In Picken v The Queen [2007] NSWCCA 319 Mason P (with whom Hidden and Harrison JJ agreed) said (at [20]-[22]):

Tripodina

and Morabito v R

Papakosmas v The Queen

R v Wilson

It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted.

The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge.”

62 In Germakianv R [2007] NSWCCA 373; (2007) 70 NSWLR 467 this Court (Giles JA, Hulme and Hislop JJ) said of rule 4 (at 472, [10]-[13]):

R v Abusafiah

R v Tripodina

‘it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously.’

12 A failure by counsel to perform this duty may be explicable because:

(a) he overlooked the point or was unaware of the law on the subject;

(b) he deliberately said nothing hoping to gain a tactical advantage at a later stage; or

Tripodina

R v Jeffrey

R v DH

‘unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level’.”

See also R v Button [2002] NSWCCA 159; (2002) 54 NSWLR 455; (2002) 129 A Crim R 242 at [32]-[35]; Keung, Bow, Liu v The Queen [2008] NSWCCA 193 at [21]-[22].

Section 6

63 If the Appellant can obtain leave under rule 4, the fate of the appeal is then decided in accordance with section 6 Criminal Appeal Act1912. So far as relevant to this appeal, section 6(1) Criminal Appeal Act says:

“The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion … that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

64 In Wilde v The Queen (1988) 164 CLR 365 at 372, Brennan, Dawson and Toohey JJ accepted that in the case before them no error was shown in the decision of the Court of Criminal Appeal that the proviso should not have been applied, because the jury would inevitably have convicted the appellant. However, at 373 they went on to state:

R v Hildebrandt

R v Henderson

R v Couper

65 In Glennon, the High Court considered the application of that principle to the particular circumstance of a misdirection on an accused person’s right of silence. The majority, Mason CJ, Brennan and Toohey JJ, said, (at 8):

any

Wilde

66 In Glennon, Deane and Gaudron JJ reached the same result as the majority, but by different reasoning. They applied the view of the proviso that Deane J had adopted in Wilde whereby the proviso does not apply “in a case where, overall, there has not been a fair trial according to law”. However in applying that standard, Deane and Gaudron JJ said (at 12):

Wilde

Submission

67 Mr Johnston, counsel for the Appellant on the appeal, submits that there has been a “fundamental error” in the directions to the jury that has led to a miscarriage of justice. That miscarriage arises, in his submission, because there is a “real risk that as a result of incorrect directions and in the absence of correct directions the jury misused the evidence of the silence of the appellant.”

68 Mr Johnston submits that the errors in the summing up are “so fundamental as to exclude the operation of the proviso”. In support of that proposition he relies upon Wilde.

Decision

Common Law Right of Silence

69 The two paragraphs of the summing up concerning which the Appellant complains (para [39] above) performed different functions in the structure of the summing up. The first paragraph is an accurate statement of the undisputed evidence in the case. The second paragraph purports to summarise an aspect of the Crown case concerning that evidence. The factual accuracy of the first paragraph does not necessarily mean that the judge made no error in stating those facts to the jury.

70 When the two paragraphs are taken together the jury could very well take from them that the Crown was suggesting that the failure of the Appellant to tell the Customs officers or the Federal agents the story that he had told in evidence was a reason why his account of how he came to be in possession of the two bags should not be accepted. Even though the judge was purporting to summarise the Crown submission (albeit inaccurately, as the Crown had said nothing about the failure of the Appellant to tell the substance of his defence to “Agent Santamaria”, or “the federal agents”) the judge said nothing about that being an illegitimate way for the jury to reason. In my view that is a clear contravention of the Appellant’s right of silence, as expounded by the High Court majority in Petty, and as illustrated by the decision in Glennon.

Section 89

71 I am not persuaded that there has been any separate contravention of section 89 Evidence Act. Section 89 is narrower in its scope than the common law concerning the right of silence. There was neither failure nor refusal by the Appellant to answer one or more questions put or made by an investigating official. Nor did he fail or refuse to respond to a representation from an investigating official. The Appellant made clear to Mr Santamaria that, if Mr Santamaria were to ask any question he would not answer it, but the interview after that point never got to the stage of any question actually being “put or made”, or any representation being “put or made”, to him. Thus the occasion for operation of section 89 has not arisen.

Rule 4

72 Even though cases have identified types of circumstances in which a court should be “slow to act” under rule 4, or when it is “extremely difficult” to satisfy a court concerning rule 4, or what would “usually” or “generally speaking” happen under rule 4 in certain types of situation, the decision whether to grant leave remains a judicial discretion to be exercised taking into account the particular circumstances of the case in question. It should also be exercised taking into account the purpose of the provision. The purpose includes, as one side of the coin, encouraging counsel at trial to provide proper assistance to the court and; as the other side of the coin, providing a means whereby counsel appearing for an accused at trial can have no confidence he will be able to obtain for his or her client an option on having a new trial by failing to object to an error that has occurred in the course of the proceedings.

73 No explanation has been given on behalf of the Appellant, or even speculated at in the submissions made on his behalf on the appeal, as to why counsel appearing at the trial did not take the point that the judge’s direction contravened the right of silence and request the judge to withdraw and correct the offending parts of the direction. The principles concerning the right of silence, and those concerning the operation of rule 4, are ones that are likely to be well known to experienced counsel.

74 The passage in the summing up that is the basis of the appeal occupies approximately half a page of text, in a summing up that occupies in total just over 19 pages of text. It is quite plausible that counsel at the trial did not regard it as, overall in the context of the trial, creating any injustice.

75 As well, in seeking to understand how it happened that counsel did not seek to correct the error, one can consider what may have happened if the judge was asked to correct the direction.

76 Consistently with Jones and Reeves it would have been open to the trial judge to tell the jury that, while they could not draw any inferences from the Appellant’s failure to tell the Customs officers and Federal agents the account he gave in the witness box, they could take into consideration any inconsistency between matters that the Appellant had told the Customs officers and his evidence at the trial. The judge could tell them that the way they could take any such inconsistency into account was in deciding whether to regard the Appellant’s evidence at the trial as a reason for not finding the Crown case proved beyond reasonable doubt.

77 A very significant inconsistency between what he said to the Customs officers and his evidence at the trial was his affirmative response to a question about whether the brown bag was “yours”. The context in which he made that statement was significant; namely, after Ms Purcell had told him that she suspected his bag contained cocaine and that he had a right to remain silent. He was specifically told that his other baggage would be searched “to make sure you don’t have any more of this sort of thing with you today”, and that the Customs officers would be contacting the Australian Federal Police. It was in that context that, when specifically asked, the Appellant said that the brown bag was his, and did not say that it was the property of someone else.

78 As well, there are some other matters in his conversations with the Customs officers that a jury might regard as falling short of actual inconsistency with his evidence at the trial, but that a jury would need to take into account in evaluating his evidence at the trial. These include his statement to Mr Tammareddi that he had packed his bags himself and was fully aware of the contents of his luggage, and his explanation for why the lining of the computer bag was thick and heavy.

79 It is quite plausible that counsel may have taken the view that, overall, it would not be helpful to his client to have the misdirection corrected at the price of the jury having pointed out to them the use that they were entitled to make of the Appellant’s discussions with the customs agents.

80 A very important circumstance in deciding whether to grant leave under rule 4 is whether the accused lost a real chance of acquittal by reason of the error in the summing up. In the present case I am not persuaded that he did. In essence, his account had the following elements:

- He had been asked, by two strangers that he had met comparatively briefly, and by chance, to go to a country that he had never been to before to perform an important business task for them.

- The strangers offered to engage him on the strength of his own account of himself and his experience.

- The information that he had about the two strangers was extremely scanty.

- He was prepared to spend a significant amount of his time, and pay a significant amount of his own money for accommodation and incidental expenses, in the expectation that the strangers would pay him a fee, and reimburse his expenses, upon his completion of the task.

- He set off to perform that task within days of them first asking him, and without doing any research or preparation to enable him to perform the task.

- So far as his evidence goes, he had only the most general idea of the type of business for which he was to prepare a feasibility study, and there is no mention of any budget or other financial constraints within which the proposed business would operate.

- While it was he who purchased his airline ticket to Australia, he did so partly with cash that the strangers had provided, and partly with money that the strangers had arranged to be sent to his wife so she could forward it to him.

- The strangers gave him the two bags that contained the cocaine on the morning he departed, and he thought nothing unusual about that.

81 One needs to add to that the matters referred to in paras [76]-[78] above, and, the discrepancy between the time of the return journey on his ticket and his stated intention as to how long he would stay in Australia.

82 The account he gave of the circumstances in which he came to Australia was so bizarre that I do not accept that there is a real chance that a jury would regard it as a reason for not drawing the inferences that would otherwise arise from the presence of the cocaine in his luggage.

83 I do not regard the misdirection concerning the right of silence as being such a departure from the essential requirements of the law that it goes to the root of the proceedings. The reasons given by the High Court in Glennon as to why a misdirection on the appellant’s right of silence was not a fundamental irregularity of the kind discussed in Wilde apply equally, in my view, to the misdirection involved in the present case.

84 In circumstances where the judge had told the jury, when Mr Santamaria was giving his evidence, that no inference unfavourable to the accused could be drawn from his exercising his right to decline to talk to the police, I would incline to the view that there was no error involved in failing to repeat that direction in the summing up. However, even if I were wrong in that view, a deficiency in the summing up arising from failure to repeat that direction would not be a departure from the essential requirements of the law going to the root of the proceedings, and in the circumstances that I have considered concerning the error in the summing up there would be no reason to grant leave under rule 4 concerning it.

85 In my view, the appropriate course is to refuse leave under rule 4.

86 I propose that the appeal be dismissed.

87 LATHAM J: I agree with Campbell JA.

: I agree with Campbell JA.

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Citations

Sanchez v R [2009] NSWCCA 171

Most Recent Citation

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CITATION:	Sanchez v R [2009] NSWCCA 171
HEARING DATE(S):	2 June 2009
JUDGMENT DATE:	2 July 2009
JUDGMENT OF:	Campbell JA at 1; Latham J at 87; Harrison J at 88
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – evidence – confessions and admissions – right of silence – right at general law and under section 89 Evidence Act – whether trial judge’s direction to the jury infringed the accused’s right of silence – distinction between common law right of silence and section 89 Evidence Act - CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – particular grounds – misdirection and non-direction – general matters – failure to take objection to misdirection infringing the accused’s right of silence – operation of rule 4 Criminal Appeal Rules – whether misdirection as to the right of silence is a fundamental error leading to a miscarriage of justice - WORDS AND PHRASES – “right of silence” – “right to silence”
LEGISLATION CITED:	Criminal Appeal Act 1912 Criminal Appeal Rules Evidence Act 1995 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 Glennon v The Queen (1994) 179 CLR 1 Jones v R [2005] NSWCCA 443 Keung, Bow, Liu v The Queen [2008] NSWCCA 193 Petty v The Queen (1991) 173 CLR 95 Picken v The Queen [2007] NSWCCA 319 R v Button [2002] NSWCCA 159; (2002) 54 NSWLR 455; (2002) 129 A Crim R 242 R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 R v Matthews (NSWCCA, 28 May 1996, unreported) R v Reeves (1992) 29 NSWLR 109 Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Wilde v The Queen (1988) 164 CLR 365
PARTIES:	Carlos Alberto Sanchez aka Carlos Alberto Sanchez-Cardona (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3555
COUNSEL:	M Johnston (Appellant) WJ Abraham QC (The Crown)
SOLICITORS:	Legal Aid Commission NSW (Appellant) Commonwealth DPP (The Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0246
LOWER COURT JUDICIAL OFFICER:	McGuire A-DCJ
LOWER COURT DATE OF DECISION:	27/7/07