Bandao v R; Bruce v R - [2021] NSWSC 544 - NSWSC 2021 case summary — Zoe

NSWNSWSC

Bandao v R; Bruce v R

[2021] NSWSC 544

Supreme Court of NSW|2021-05-18|Before: Adams J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-05-18

Before

Adams J

Catchwords

Bruce v R [2018] NSWCCA 181 Clark v Attorney General of New South Wales [2020] NSWCA 70 Coco v The Queen (1994) 179 CLR 427

Source

Original judgment source is linked above.

Catchwords

Bruce v R [2018] NSWCCA 181 Clark v Attorney General of New South Wales [2020] NSWCA 70 Coco v The Queen (1994) 179 CLR 427

Judgment (24 paragraphs)

[1]

REASONS FOR DECISION UNDER S 78(1) OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

By application filed on 1 May 2020, Ms Yu Hai Li ("the applicant") makes an application for an inquiry into her conviction pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act").
On 6 July 2020, the Attorney General filed submissions in response. Although these are not judicial proceedings, s 79(4) of the CAR Act provides that the Supreme Court may consider any written submissions made by the Crown with respect to an application.
On 8 September 2020, the applicant filed submissions in reply accompanied by the applicant's affidavit of 12 August 2020 and an affidavit of Mr Peter Ghibely dated 15 July 2020. The authenticity of this affidavit is a matter I will return to. Further written submissions of the Attorney General were filed on 20 October 2020.
On 6 November 2020, this application was allocated to me by the Chief Judge at Common Law for determination.
On 26 November 2020, additional submissions ("urgent pleading") and a further affidavit were filed by the applicant. The intended effect of these documents appears to be, inter alia, to withdraw the affidavit of Mr Ghibely. An amended version of this "urgent pleading" was later filed in a "final pleading".
By email dated 5 May 2021, the applicant sought to provide even more material. On 5 May 2021, my associate notified the parties that I did not propose to consider the material filed on 5 May 2021 or any material filed after that time.

[2]

The application

The applicant has prepared her application herself from custody. English is not her first language and her application is handwritten. It was difficult to read her handwriting and even more difficult to follow her arguments. She makes very serious allegations about the conduct of the trial judge, the Crown, the witnesses, and in some respects, her counsel at trial.
The applicant relies on three grounds which are, verbatim, as follows: "Ground 1: A Serious Miscarriage of Justice has arisen on account of Trial Judge's creation of fake definition upon the original law at search warrant area; creation of fake evidence to Jury for replacement of original five police officer's evidence in trial at the search warrant area. Ground 2: A Serious Miscarriage of Justice, abuse of law has arisen on account of Trial Judge's creation of major trial evidence in five areas to replace multiple trial witness's original evidence in trial; made address to Jury with the fake ones, seriously contaminated trial. Ground 3: A serious abuse of Power, abuse of basic human rights has arisen on account of Trial Judge's three times ongoing threatening me in court with: 'life time imprisonment', 'no chance to appeal' for sealing my voice on polite legal requestment of self-representation in trial, sacking my lawyer when lawyer did ongoing serious harm to my case. Trial Judge used threaten to cut off my right to self-defence in trial, teamed up with my lawyer to harm me. DPP Madam crown made integrity honesty in action to try to protect justice, but Trial Judge made order to cut off Madam Crown's voice, made choice to step into abuse."
The Attorney General does not support the application and contends that it would be open to this Court to decline to consider it, especially as it was so comprehensively dealt with by the Court of Criminal Appeal ("CCA"): ss 79(3)(a)(i) and 79(3)(b) of the CAR Act.
I have had regard to the material filed and am satisfied that there is no basis to refer this matter to the CCA. The very serious allegations made about the trial judge are completely untenable as are the other issues raised by the applicant.
Despite the fact that it would be open to me to decline to consider the matter without providing any further reasons, I propose to set out the applicant's arguments and my findings in relation to each of her grounds of review in the interests of open justice. I do not propose to consider every allegation made by the applicant. There is no requirement for me to do so. As McCallum JA noted in Clark v Attorney General of New South Wales [2020] NSWCA 70 at [47] in relation to the duty of this Court to consider an application under Part 7 of the CAR Act: "There is nothing in the text of the statute to suggest that it is necessary, before the discretion to refuse to consider an application under Part 7 is enlivened, for the Supreme Court to be satisfied that every piece of evidence or every paragraph of every submission put in support of the application was fully dealt with at the trial or on appeal or has previously been dealt with under Part 7. The task is to identify the substance of the matter the applicant contends warrants an inquiry or referral of the case to the Court of Criminal Appeal."

[4]

Court of Criminal Appeal

The applicant sought leave to appeal against conviction based on alleged errors in the trial judge's directions to the jury. She was represented by Mr Tim Game SC and Ms April Francis of counsel; very experienced senior and senior junior counsel respectively. There can be no doubt that the applicant received excellent legal representation in her appeal to the CCA. Leave to appeal was refused: Li v R [2019] NSWCCA 228.
The evidence upon which Ms Li was convicted is set out in some detail in the judgment of Gleeson JA at [9]-[25] as follows: "[9] In November 2013, police established Operation Strike Force Lombard to investigate the drug supply activities of Peter Ghibely (Ghibely). Between January 2014 and May 2014, two undercover operatives known as 'Sam' and 'Sonny' participated in a number of controlled operations, where they purchased quantities of methylamphetamine from Ghibely and later the applicant. [10] Ghibely had known the applicant since at least 2011 when he worked as a receptionist at a brothel run by the applicant in Sutherland Street, Clyde. He gave evidence that his duties at the brothel included selling methylamphetamine for the applicant. He said he had an 'on-off' romantic relationship with the applicant. The applicant said she had known Ghibely for about ten years. She said they had been in a personal relationship since around April 2013 which ended in March 2014. [11] During the course of a controlled operation on 2 April 2014, the applicant and Ghibely met with an undercover operative (UCO), Sonny, and supplied him with 27.96g of methylamphetamine for $8,000. The applicant subsequently met with UCO Sonny alone and supplied further quantities of methylamphetamine. On 11 April 2014, she supplied 27.92g for $8,000; on 29 April 2014, she supplied 83.67g for $24,000; and on 8 May 2014, she supplied 83.7g for $24,000. [12] The Crown case relied upon recordings of meetings between UCO Sonny and the applicant. At the 2 April 2014 meeting, after Ghibely had explained to UCO Sonny that he had been 'done three times with the Cops', and that if anything happened to him, the applicant would take over, the applicant confirmed that the drugs were her 'stuff'; that all of Ghibely's 'good stuff comes from me … his good stuff's only family only' and that 'it's going to be long term quality guaranteed'. The applicant gave UCO Sonny her phone number in case Ghibely got 'picked up'. She also gave UCO Sonny a code to send her messages to arrange for further supplies. [13] In early April 2014, Ghibely was arrested and charged with other offences. At the 11 April 2014 meeting, the applicant referred to Ghibely as her 'child' and that she was worried that Ghibely might become a 'dog'. The applicant told UCO Sonny that she normally supplied lump sums and that she did 'kilo' only. [14] At a further meeting on 20 May 2014 where no drug supply took place, the applicant told UCO Sonny that she was expecting an 11 kg shipment of drugs from Afghanistan. [15] On 3 July 2014, the applicant was arrested at approximately 6 pm at Westfield Shopping Centre in Parramatta in relation to her ongoing supply of a prohibited drug to UCO Sonny. Ghibely was also arrested on that day and subsequently charged with two offences of ongoing supply of methylamphetamine to undercover operatives, contrary to s 25A of the DMTA, to which he later pleaded guilty. [16] Following her arrest, the applicant was handcuffed and cautioned. Police asked the applicant where her car was located and she took them to an underground carpark in an apartment building in Church Street, Parramatta where her Audi was parked. They were met there by other police officers. A search of the applicant's handbag located a set of keys to an apartment. The applicant declined to tell the officers which apartment she occupied. Using the keys to check the letterboxes, officers found envelopes addressed to the applicant in a letterbox for Unit 2601. The officers went to that apartment and knocked on the door but there was no answer. [17] Police then applied for and were subsequently granted an after-hours search warrant. Execution of the search warrant commenced at approximately 8:30 pm. The apartment comprised two bedrooms, a living room, and two bathrooms, one of which was an ensuite attached to the applicant's bedroom, which was locked. The applicant's son, Yukio Saito (Saito), occupied the other bedroom. When the police entered the apartment, they found the applicant's son asleep in the second bedroom. [18] In the course of the search, the police located the various items in the applicant's bedroom and ensuite bathroom, including: (1) A white silver 'Felicidades' plastic bag containing a large amount of clear resealable bags, white gloves, measuring spoon and scales, a marriage certificate, divorce certificate, copy of passport, driver licence and other identity documents in the name of the applicant (found in the ensuite of the main bedroom on the floor near the shower). (2) A white Marc Jacobs handbag containing an Australia Post envelope, five resealable bags containing a crystalline substance (found in the ensuite of the main bedroom on floor inside door). (3) A plastic shopping bag with a Jolly logo containing a pencil case with a courier receipt, $11,165 cash, the applicant's passport photograph, four large bags of a crystalline substance and five packages of a crystalline substance in packets labelled 'sesame' (found in the ensuite of the main bedroom on the floor to the left of the toilet). (4) Various papers in the applicant's name including receipts for payments to real estate agents, which were found in the kitchen cupboard; paperwork relating to the brothels operated by the applicant, which was found in a cabinet on the balcony; the applicant's driver's licences and passport and expired passports and bank cards in the name of the applicant (which were found in the applicant's bedroom). (5) A box package addressed to the applicant at 7/1 Sutherland Street, Clyde, containing a plastic bag heat sealer (which was found in the hallway outside the main bedroom). (6) A grey plastic shopping bag containing a white powder substance (which was found in the ensuite to the main bedroom, on the floor inside the doorway next to the shower). (7) A grey plastic shopping bag containing two bags of a crystalline substance (which was found in the ensuite to the main bedroom, on the floor inside the doorway next to the shower). (8) A small plastic box containing small resealable bags and a crystalline substance (which was found in the ensuite to main bedroom, on the floor inside the doorway next to the shower). (9) A pink plastic bag containing 275 small resealable bags of a crystalline substance (which was found on the floor of the main bedroom). (10) $50,000 in Australian currency (found in the wardrobe of the main bedroom). (11) A two-pronged taser in a black case in the ensuite of the main bedroom, on the floor near the shower (inside plastic bag referred to at (1) above [Count 2]. (13) A taser that looked like a mobile phone (which was found in the ensuite of the main bedroom, on the floor near the shower) [Count 3]. [19] Subsequent analysis of the crystalline substances that were located in the applicant's bedroom and ensuite found a total of 3,784.9g of methylamphetamine. These drugs were variously packaged as follows: 3 x resealable bags containing 1,496.6g; 2 x large plastic bags containing 901.4g; 5 x resealable bags containing 74g; 5 foil-wrapped packages containing packets labelled 'sesame' containing 300.2g; a Tupperware container containing 156.6g; 150 x clear resealable bags containing 27.5g; 2 separate bags containing a total of 809.3g; and 275 x resealable bags containing 19g. [20] Following her arrest, the applicant took part in an electronically recorded interview of a suspected person (ERISP) on 3 July 2014. She later provided a handwritten statement to the police on 27 April 2015. [21] The primary issue at trial was whether the Crown had proved beyond reasonable doubt that the applicant had 'possession' of the drugs and the tasers. [22] The Crown case was that the applicant alone possessed the drugs and the tasers and that she had exclusive possession of them. [23] The defence case in relation to the drugs was that (1) the state of the applicant's bedroom and ensuite bathroom at the time of the execution of the search warrant was not as she had left it on 3 July 2014, (2) the drugs which were found by the police must have been a product of the contents of a plastic Duty Free bag which had been left in her bedroom by Ghibely on 31 March 2014, but the applicant did not know exactly what was contained in that bag, and in particular, did not know or believe that it was drugs, and (3) the Duty Free bag was not in the applicant's custody or control as Ghibely never relinquished control, given that he had told the applicant not to disturb the bag or do anything with it and he had retained a set of keys to the apartment. The defence case in relation to the prohibited weapons was that the tasers were not the applicant's, whilst asserting that Ghibely used to carry such items. [24] Various police officers gave evidence concerning the execution of the search warrant. Their evidence was that the drugs found at the apartment were not in a Duty Free bag and police did not find any such bag in the search. Undercover operatives, Sonny and Sam, also gave evidence concerning the controlled operations and conversations with the applicant in April and May 2014. [25] Ghibely gave evidence in the Crown case. He said he never possessed keys to the applicant's apartment at Parramatta but that he accessed the premises for a fortnight when the applicant moved in for the purpose of building some shelving and installing a curtain on the balcony. He denied living with the applicant. Ghibely denied storing drugs at the applicant's apartment, giving drugs to her, or leaving the tasers at the applicant's apartment. He also denied ever assaulting the applicant."
Two grounds of appeal were relied upon. Both contended that a miscarriage of justice had resulted from the directions given by the trial judge in respect of the element of the offences involving "possession" of the drugs and the tasers. The applicant required leave to appeal on those two grounds as they raised questions of mixed law and fact and involved challenges to directions or omissions to direct on the part of the trial judge in circumstances where no objection was taken at trial: Criminal Appeal Act 1912 (NSW), s 5(1)(b); Criminal Appeal Rules (NSW), r 4.
Leave to appeal was refused. I do not consider it necessary to set out the Court's reasons for refusing leave. Suffice to say that the Court was not satisfied that any error was disclosed in the summing up when viewed as a whole.
On 5 February 2020, special leave to appeal to the High Court was refused: Li v The Queen [2020] HCASL 6.
On 16 March 2020, the applicant filed a notice of intention to appeal against sentence, but it was in the terms of a complaint about conviction relying upon the same grounds as are relied upon in this application. When on 26 March 2020 the applicant appeared in relation to that notice of intention to appeal, the appeal was marked as being incompetent and the applicant was directed to file an application under s 78 of the CAR Act, which she subsequently did.

[5]

Relevant legislation

Section 78(1) of the CAR Act provides: An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
Section 79 of the CAR Act provides: (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).
This Court may refuse to deal with an application if the matters raised have already been fully dealt with, including in an application to the CCA, provided that the Court is not satisfied that there are "special facts or special circumstances that justify the taking of further action."
In determining an application under Part 7 of the CAR Act, the Court is making an administrative decision: Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [124].
The relevant principles to be applied in determining an application pursuant to s 78 were considered by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 ("Peter Holland"). His Honour stated the following at [6]-[9]: "[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. … [9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result."
In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 ("Sinkovich v Attorney General"), Basten JA referred at [64] to the test stated in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 of whether there is a feeling of "unease" or "disquiet" (referred to by Johnson J above at [6] in Peter Holland). His Honour went on to observe at [65] that "[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question'."

[6]

The application

The applicant relies on the following material: 1. The applicant's written submissions filed on 1 May 2020, comprising 3 typed pages of grounds and authorities and 37 pages of handwritten submissions. 2. A folder of transcript from the applicant's trial, accompanying the written submissions filed on 1 May 2020. The pages of the transcript that were included were selective and non-chronological. 3. Written submissions in reply filed on 8 September 2020, comprising 82 pages of handwritten submissions. The applicant further filed three handwritten pages of an "application for the use of eyewitness affidavits". The two "eyewitness affidavits" were an affidavit of Mr Peter Ghibely dated 15 July 2020 and an affidavit of the applicant dated 12 August 2020. By way of example of the allegations made in the submissions, one page of the written submissions alleged that: the trial judge's comment that the charges carried a life sentence was a "RAPE" (as written) on the applicant; the applicant's trial counsel "RAPED" her case; her counsel's closing address was "nothing but a RAPE"; and her case "truely was a RAPED Case [sic]". 4. Following the Attorney General's further written submissions filed on 20 October 2020, on 26 November 2020 the applicant filed an "urgent pleading" dated 24 October 2020 (five pages typed), a "final pleading" dated 31 October 2020 (two handwritten pages, and another version of the "urgent pleading" containing handwritten amendments), and an affidavit of the applicant dated 11 November 2020. The applicant sought in her urgent and final pleadings to "withdraw" the two "eyewitness affidavits" filed on 8 September 2020. 5. On 5 May 2021, the applicant sought to file further material but was informed that this material would not be taken into account on this application.
The Attorney General, on behalf of the Crown, filed written submissions on 6 July 2020 and further written submissions on 20 October 2020. On 22 October 2020, the Crown Solicitors Office further filed four pages of a transcript of the proceedings on 19 May 2017.
This is the material upon which I have considered this application.

[7]

Ground 1

There are two complaints made under the first ground: first, that there was "fake" evidence and secondly that there was a "fake" definition by the trial judge.
These complaints were not made in the CCA.
The complaint concerning the "fake" evidence pertains to [16]-[17] of the summary of evidence in the CCA judgment I have extracted above at [16].
The applicant contends that there was an unlawful entry by police officers into her apartment prior to obtaining the search warrant thus the evidence was illegally obtained. Five police officers gave evidence on this issue at trial. Their evidence can be summarised as follows.
Detective O'Sullivan gave the following evidence: "Q. … what happened then after the mailbox was opened? A. We went upstairs to the level that [the] unit was on and then we went to the front door, I was with Detective Sergeant Mackay, Detective Hakin, Constable Chivers and I think Detective Stevenson was there. I saw Detective Sergeant Mackay put the key in the front door for [the unit]. He opened it, all the lights were off inside, so he closed it and locked it back up." [1] (emphasis added)
Detective Stevenson gave the following evidence: "Q. When you reached [the unit] did something happen? A. That's correct. Detective Sergeant Mackay or Detective Sergeant Hakin, one of them used the same bundle of keys, used another key to open - we first knocked and there was no answer. We used the key to open the door to that unit… and when we opened the door ajar, yeah, all the lights were off inside and I formed the opinion that there was no one home. … Q. Was the front door then shut again? A. The front door was then resecured, that's correct. … Q. Were you waiting for that search warrant to arrive before you could enter the premises again? A. That's exactly right. Yes, we weren't going to formally do anything until the search warrant was on the scene." [2] (emphasis added)
Detective Senior Constable Chivers gave the following evidence: "Q. After that letterbox was opened what happened then? A. … We went up in the lift … and Sergeant Mackay used a key on that and it opened that door. … The key was tested and opened the door. I knocked first, no answer, tested the key, opened the door. … Q. Then what happened? A. It [sic] closed the door and went back downstairs… [in cross-examination] Q. How long was the door open for? A. Not long at all, seconds. … Q. Then you say the door was closed again? A. That's correct." [3] (emphasis added)
Detective Sergeant Mackay gave the following evidence in cross-examination: "Q. I think you said that you tried the key and it opened the door? A. Yes. Q. You say no officers went inside? A. That's correct." [4] (emphasis added)
On the other hand, Detective Hakin gave the following evidence: "Q. When you travelled to level 26, what did you do? A. We went to the unit … and a key from the key ring was used to attempt to open the door which it did open. … Q. At that stage did anyone enter the unit? A. I remember that, like a challenge was called from the door, like 'Police' or something like. I don't recall whether anyone actually particularly went through the unit, maybe - and then entered into the door, but not all the way through the unit, no. … Q. After that, did any of the police enter the unit? A. Someone may have crossed the threshold of the door, but no one went in and spent any time in there. Q. When you say someone might have crossed the threshold of the door, did anyone move beyond the front door area? A. No, not that I recall. Q. When you say someone might have crossed the threshold of the door, how far would they have crossed it? A. I think just to sort of step inside… just to maybe have a look down the hallway, but other than that I don't recall anyone going into the unit itself. Q. What happened after that? A. The door was closed. …" [5] (emphasis added)
In summing up, the trial judge referred to the above evidence in the following way: "Counsel raised with you other things that were not done by the police. In relation to the search warrant, there was no independent officer there until about 8:30. There was no independent officer there to verify the actions of the police when they say that they were checking the key in the letterboxes. There was no independent officer there when police took the keys to an apartment said to be occupied by the accused and operated the lock to her front door, and you had conflicting evidence between the police as to what was actually done at that front door, whether the key was only operated in the lock, whether a police officer stepped inside the apartment. You were reminded that the police had a camera there and they could have filmed all these things if they had wanted to but they chose not to." [6] (emphasis added)

[13]

Mr Ghibely's affidavit

In support of her application, the applicant sought to rely on an affidavit of Mr Ghibely dated 15 July 2020 in which Mr Ghibely said: "In Yu Hai Li's 2016 trial, while I was in my witness box, Yu Hai Li's lawyer handed me a photo of a taser with a yellow sticky note attached on it. The note was instructing me to put the blame of the taser onto Yu Hai Li… I did as the note said, I put the blame of the taser and drug selling history onto Yu Hai Li, in which Yu Hai Li did not deserve." [9]
In this affidavit Mr Ghibely also referred to "[his] own lawyer": "In Yu Hai Li's 2015 committal court at Parramatta, I said during court that I was in fear for the safety of my own neck for those drugs that I never ever knew about. There were multiple professional people including my own lawyer that lied to me on evidences and facts, threatened me with my own safety upon Yu Hai Li's charges… Only after Yu Hai Li's 2016 trial finished, I started to have a chance to read the true police evidences hidden behind those wrong threatening words from my own lawyer…" [10] (emphasis added)
There are a number of characteristics of this affidavit which cause me grave concern as to its authenticity. The transcript reflects that Mr Ghibely spoke fluent English. The applicant does not. The language of the affidavit is consistent with the applicant's style of writing in broken English.
Secondly, the reference to "my own lawyer" is a telling slip on the applicant's behalf. It was the applicant's lawyer to whom the reference was applicable.
Thirdly, the contents of the affidavit are inconsistent with the transcript and, quite frankly, could not have occurred. The transcript provided by the applicant (T 1031-1032) shows that the witness was shown a drawing and not Exhibit BB. Further, the warning by the judge was that notes from the applicant should not be attached to documents shown to witnesses as the italicised portion above at [53] makes clear.
The Attorney General raised these concerns about the affidavit of Mr Ghibely in its further written submissions filed on 20 October 2020.
On 26 November 2020, the applicant filed a further affidavit sworn by her and typed submissions (her "urgent pleading") dated 24 October 2020 which stated, inter alia, the following (struck out text was amended by the applicant's "final pleading"): "May I please withdraw my 2 forms of eye witness's affidavits that are attached with my second submission. Please keep and remain the parts of my transcript printing error correction and exhibit 4 and exhibit 5 in my affidavit for court evidences. Mr Ghibely was upset ANGRY to hear Mr Attorney General's comment on Mr Ghibely's written manner that work in different way compared to Mr Ghibely's verbal transcript. No one can speak and write in the same manner, we had an exclusive relationship for many years and we had habits in common. Mr Ghibely is willing to testify his facts in court in front of the Judges, but I stopped him for other concerns mentioned at my part 2, point 2.8." [point 2.8 was later "withdrawn" in the applicant's "final pleading"].

[15]

Access to the applicant's unit: electronic fob

The applicant submitted that the trial judge "created fake evidence" on the issue of whether an electronic fob was required to access the level of the apartment building on which the applicant lived.
The applicant's case at trial was that someone had accessed her apartment on the day of her arrest and planted the drugs that were later found by police. It was in this context that the electronic fob issue was relevant.
It was the applicant's case at trial that Mr Ghibely had been given access to the apartment in late 2013 to install furniture, and that he had returned the electronic fob but had kept or copied the key to the front door. The applicant thus sought to prove that someone, through Mr Ghibely, had access to a front door key and could have entered the building and operated the lift without using an electronic fob. Mr Ghibely's evidence at trial was that he did not keep any keys and did not make any copies of any keys. [12]
The applicant relied upon the evidence of a police officer, Mr Hinds, who said the following in cross-examination: "Q. How did you get upstairs to the unit? A. Lift. Q. How did you use the lift? A. Pushed a button. Q. Did you need anything to push the button? A. No, from memory, no, unless my memory there, I don't know exactly how I did. Q. You'd have no memory of using a fob to get up there? A. No, unless someone come down to meet me, I can't exactly tell you how, no, I didn't go inside, it was only on the outside, just to speak to Sergeant Mackay." [13]
This evidence was relied upon by the applicant to contend that no fob was required to operate the lift (and thus anyone could have gone up to plant the drugs).
The difficulty for the applicant at trial was that this evidence was contradicted by evidence from other witnesses. Significantly, the applicant's son said the following: "Q. How did you get up the lift? A. When I was going out on my own, before I had a fob key, I would call the dial number on my neighbour or something like that and just ask if they could let me in because I'd forgotten my fob and that's how I would get into the elevator to the floor and then I had the fake copy of the key to access the door of the apartment…" [14]
The applicant's son maintained in cross-examination that he was given the second electronic fob once Mr Ghibely returned it. [15]
Mr Ghibely's evidence was that the apartment was not accessible from the front door at street level without an electronic fob. [16]
Detective Hakin gave the following evidence: "Q. Once you were inside the building, where did you go? A. Went to the lift, and we went up using the electronic pass up to level 26. Q. In relation to the electronic pass, how was it used? A. I guess like most secure lifts, there was, inside some form of electronic pad, put up against it and it allows you to press the number, the level number that it's linked to." [17] (emphasis added)
Detective Senior Constable Chivers said that the electronic fob was used to access the building and was also used to operate the lift and access level 26. [18] Detective Stevenson also said that the electronic fob was required to operate the lift to access level 26. [19]
Prior to closing addresses, the applicant sought to dismiss her counsel and make her own submissions to the jury.
A discussion occurred between the applicant and the trial judge regarding the submissions the applicant sought to make to the jury: "ACCUSED: … Lots of facts Mr Santisi did not know, he didn't gave me the chance to tell him. He don't know the facts, I have the facts in relation to the fob, elevator and the key [to the apartment] points. … I only want to raise up three simply points in related to [the apartment], that's all, and I don't really cannot let Mr Santisi represent this part because he simply don't have the knowledge about [the apartment building]. HER HONOUR: Ms Li, if the evidence is not in the trial - ACCUSED: No, its not - don't need evidence, just need to point to the facts. HER HONOUR: No, there must be evidence. The evidence in the trial is, a fob was needed to get in the front door down on [the street], and get up and down in the lift. ACCUSED: Yes. HER HONOUR: That's in evidence. ACCUSED: Yes. … HER HONOUR: Ms Li, I'm going to give you the opportunity to talk to your counsel now, and to discuss with your counsel now any points you want raised in the closing address, and the two of you can have that opportunity to discuss it." [20] (emphasis added)
The applicant submitted that the trial judge prevented her from telling the "true fact" that anybody who held a key to the front door of the apartment could access the unit without needing a fob to operate the elevator.

[17]

Duty free bag

The applicant submits that the trial judge misrepresented her evidence about a duty free bag in the summing up.
The relevance of the duty free bag was that the applicant contended that Mr Ghibely left a duty free bag at her apartment, did not allow her to dispose of it, and that she did not know the contents of the duty free bag. No duty free bag was present when police searched the applicant's apartment. The defence case was that the items found in the apartment could have been brought in by Mr Ghibely in the duty free bag. The duty free bag was also said to explain the applicant's admissions in her ERISP.
The evidence about the duty free bag was as follows.
The relevant answers given by the applicant in her ERISP of 3 July 2014 are summarised as [27]-[28] of the CCA decision in Li v R: "...In answer to a question whether police would find anything in the unit that was illegal, the applicant responded, 'I think so, maybe'. She said that she was keeping something that was 'not nice' for her 'friends'. She said that she did not know 'the detail' of what was in 'the plastic bag' or 'something'. She said that the plastic bag was in her bedroom. She could not say where it was in her bedroom. The applicant said that she did not know what was in the bag. She said that 'Peter' had given her 'lots of shit'. She said that she had had the 'stuff' for months. She denied receiving anything for storing the 'stuff'. She said that she stored it for friendship. She said that she 'touched them all from inside, outside, everything, I touched them all'. She said that she looked at it, but didn't weigh it. She said, 'I think it's about like, I think he said like this plastic bag is half [and half] and I think have four of them or something'. When asked what was meant by 'half' the applicant responded, 'and half kilo of the pack maybe have four or something'. When asked whether she thought there should be two kilos there, the applicant replied: 'There, and have some other small funny packages, you know, those small packages and I don't know how many it is'." (emphasis added)
The applicant gave a handwritten statement to police on 27 April 2015, after receiving the brief of evidence. That statement is relevantly summarised by the CCA in Li v R at [30]-[31] as follows: "In her statement the applicant said that the 'stuff' the police took from Unit 2601 on 3 July 2014 was 'put there by Ghibely on 31 March 2014'. She said Ghibely told her that she 'must look after those for him'. Ghibely brought it in a 'big box' and 'chucked them on the floor of the centre of my bedroom bath floor'. Ghibely said that it was 'something very expensive that I can't afford to pay back if it get lost, and it's something not good'. According to the applicant, Ghibely had arranged for a friend to cut him a master key to the apartment. The applicant said that she was very angry and screamed at Ghibely and he assaulted her with a wine bottle. The applicant said that Ghibely refused to get rid of the 'stuff'. She said soon after that, her car was smashed. Referring to her recorded interview with police on 3 July 2014, the applicant stated that she agreed to speak with police against legal advice because she was worried about her son. She said that she told police that she 'touched them inside out outside in', but that she 'still can't tell right details about the name of stuff, the weight, the anything. And it don't have my fingerprint'." (emphasis added)
The applicant gave the following evidence at trial: "Q. When you are answering those questions [in the ERISP], what item do you think they are talking about? A. They talking about finding those - the Peter's bag in - Q. That was your understanding of when they were asking questions of you? A. Yes. Q. You now have seen the video several times when it was provided to you the brief, do you recall that? A. Yeah, I only receive my brief the first time it's at May 2015. I never saw any of those before May 2015. … Q. Up until that date, what did you think police were talking about when they were asking you questions? A. They talking about that duty free bag I thought. Q. You then saw items different to the duty free bag in the footage? A. Yes. Q. Had you ever seen those items before? A. No. Q. Did you put them there? A. No. Q. Did you know how they got there? A. No. … Q. You are saying that what you saw in the footage was not they way you left it that day? A. No, it is not. [21] … Q. Did you at any stage before police found something in your unit, open those items in the duty free bag? A. When I saw the police home search video, there's no duty free bag, it's been missing." [22] (emphasis added)
Counsel for the applicant, in his closing address, said the following: "The record of interview, the Crown says, well there's all sorts of admissions in there, but again you can only come to that conclusion if you are satisfied that Ms Li was talking about the same thing that police were talking about because if you're not, you can't draw that inference. In this instance, as I mentioned yesterday, police never showed her any photographs of what was being found. She says, 'I thought they were talking about the duty free bag when I'm responding'. They're like two ships in the night. They're at cross purposes to each other." [23]
In summing up, the trial judge referred to the applicant's evidence about the duty free bag in this way: "You were reminded that the Crown bears the onus of proof and the onus is to the requisite standard of beyond reasonable doubt, and what Ms Li has put in issue is the following: 'When I left my unit there was a duty free bag there. I did not know what was in it but it certainly wasn't the items that I saw on the footage, or at least I don't know if it was because the state that the duty free bag was in was not the way that I saw it in the footage taken at the time of the search. …'" [24] (emphasis added)

[18]

Applicant's submissions

The nub of the applicant's complaint is that her evidence was misrepresented by the trial judge, to the detriment of her case. The applicant submits that it is clear that her evidence at trial was that she knew her apartment had been altered because the duty free bag was not in the search warrant video, and she was sure that she had left it there. This is said to be demonstrated by her evidence to police about the "plastic bag". The applicant submitted that the trial judge's summary of her evidence suggested that the applicant said she saw the duty free bag in the search warrant video, but not in the way she had left it. The applicant submitted that this did serious damage to her case and caused a miscarriage of justice.
In the applicant's reply submissions, the applicant alleged that the issue of the duty free bag was misrepresented by counsel. Counsel for the applicant, in his closing address, put two alternative submissions: either that someone accessed the apartment with the key allegedly held by Mr Ghibely, or that the drugs were in the duty free bag which the applicant was forced to keep and the contents of which she was not aware of: "The minute you can't exclude that someone else could gain access to the apartment, through those keys [Mr Ghibely's keys] or another set of keys that were copied from those keys, then you cannot exclude the possibility that someone else put those drugs there and could exercise control over them. The other finding of fact available to you on the material is that they were always part of this duty free bag that she has told you about. The issue is that she says 'I never opened it. … it was not my interest to find out what it was. … I made no inquiry." [25] (emphasis added)
The applicant said that the issue at trial became whether she knew the contents of the duty free bag, on the assumption that the contents of the bag were the items found in the search. The applicant submitted that, on her case, the duty free bag had been removed from her apartment, presumably at the time when the illegal items were allegedly planted by Mr Ghibely or another person who had access to Mr Ghibely's key.
The applicant submitted that the wrong question was posed to the jury when counsel asked the jury to assess whether the applicant knew what she had in her possession, through the duty free bag. The applicant submitted that this is the wrong question because the duty free bag was not found in the search.

[20]

Evidence about Mr Ghibely's motive and involvement

The applicant makes complaint as to the manner in which the evidence of Mr Ghibely was presented and the direction given by the trial judge about his evidence.
Mr Ghibely gave evidence at committal proceedings in 2015. At the applicant's trial in 2016 the following exchange occurred: "CROWN PROSECUTOR: You gave evidence at the accused's committal proceedings on 21 July 2015? A. Yes. Q. Was the evidence you gave at that time true and correct? A. Yes. Q. I'll show you now a document. SANTISI: It's most unusual that the witness is shown a transcript of the committal proceedings. CROWN PROSECUTOR: It's simply to mark it for identification, your Honour. SANTISI: How would he know what it is. HER HONOUR: Mr Santisi; no, if you want to discuss it in the absence of the jury - Madam Crown, if that is a court committal transcript, it doesn't need to be shown to the witness." [26]
In cross-examination, the committal evidence was put to Mr Ghibely: Q. Do you recall being asked some questions on 21 July 2015 by another barrister? A. Yes. And I probably answered the exact same questions I'm giving you right now. Q. You were asked this question, 'Mr Ghibely you were saving your own neck weren't you?' to which you said, 'Yes'? A. No I did not." [27]
The applicant now submits that the trial judge concealed the transcript of a 2015 committal hearing, which allegedly revealed Mr Ghibely's motive for giving evidence against the applicant, and prevented the jury from knowing that Mr Ghibely changed his evidence between the 2015 committal hearing and the 2016 trial.
The applicant further submitted that the trial judge misrepresented her evidence in the summing up by asserting that the applicant attributed actual possession of the methamphetamine to Mr Ghibely. The applicant submitted that she only attributed the duty free bag to Mr Ghibely, not the drugs that were actually found in her apartment.
Counsel for the accused, in his closing address, said the following about possession of the items: "In this instance, through the record of interview, through the statement OO that Ms Li gave to Detective Lewis at the Crime Commission, and through her evidence she has put in issue that very issue, namely it was Ghibely and/or Sonny through Mr Ghibely that was exercising possession over these items, even though they were in her apartment." [28]
In summing up, the trial judge summarised that submission in this way: "It was submitted that the accused, through her interview with police and through her document at OO [the accused's written statement to police], put in issue that it was Peter Ghibely or Sonny through Peter Ghibely that actually had possession of those drugs, and it was submitted that the only other person who had access to her unit was Peter Ghibely." [29]
At the conclusion of the first day of summing up, the following comment was made in the absence of the jury: "HER HONOUR: At this stage, do counsel have any redirections that are being requested? SANTISI: I think your Honour inadvertently said that you can't exclude Sonny from having possession as opposed to Joon. That's what I heard. HER HONOUR: You put Sonny, somewhat to my surprise. SANTISI: Did I? HER HONOUR: Yes, you put Sonny and Peter Ghibely as the two people that were involved. SANTISI: Sorry." [30]
The applicant has not provided the transcript pages that would reveal whether this was later corrected in the presence of the jury.
The applicant also makes complaint that the trial judge mentioned in her summing up the 15 per cent discount Mr Ghibely received for his assistance to police. The applicant submitted that this created a "fake motive" and that the trial judge should not have mentioned the discount because it was not put in issue by any lawyers.
The applicant also submitted that the trial judge erred in referring to "multiple reasons" for Mr Ghibely to lie because he only had one motived to lie: to avoid blame for the items found in the applicant's apartment.
The trial judge gave the following directions about Mr Ghibely and his possible motives to lie: "You have heard questions asked and submissions made as to why Peter Ghibely, having a motive to lie, may have lied in this case. That relates to Peter Ghibely wanting to blame the accused for his own wrongdoing. … Further, the Crown relies upon the evidence of Peter Ghibely. It is a fact that Peter Ghibely is a person who was involved in the supply of prohibited drugs to the undercover operative, Sonny, to the undercover operative, Sam, and to other people. The law requires me to give you certain warnings and directions concerning this evidence. They are given in every case in which the Crown relies upon the evidence of a witness who was or might have been involved in the alleged crime. They are not given in this case because of any view which I have formed concerning the evidence of Peter Ghibely. … There are many reasons why the evidence of such a person may be unreliable. Possible reasons are it is only natural, you may think, that a witness who was or might have been involved in the alleged crime may want to shift the blame from himself or herself to others and to justify his or her own conduct. … Persons who are or might have been involved in any alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility. Such a person may be motivated to give false evidence in order to qualify for a reduction on his or her own sentence. Peter Ghibely gave evidence before you that he received a discount on his sentence because of his agreement to give evidence against the accused. His sentence was discounted by 25% for his plea of guilty and by 15% because of his agreement to give evidence against the accused. After those discounts were applied, he was sentenced to a total of 30 months' imprisonment. That means that Peter Ghibely's sentence was reduced by seven and a half months because of his agreement to give evidence against the accused. If Peter Ghibely did not give evidence against the accused, he could lose that seven and a half month discount and have to spend more time in gaol. There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be. … Experience has shown that, once such a witness has given a version to the police which incriminates an accused, he may feel locked into that version, even if it contained inaccuracies or even if it was substantially untrue. Finally, in relation to the evidence of Peter Ghibely, a number of his motives for lying or possibly lying were explored. One was because the police told Peter Ghibely that the accused was blaming him, that she said they were his drugs and his solicitor had also told him something similar before the police came to see him in gaol. So it was put that he was motivated by that information to lie about the accused. You are aware that Peter Ghibely admitted lying to the police at the time of his arrest. Peter Ghibely agreed in cross-examination that he would lie at times if it was to his advantage. When assessing the evidence of Peter Ghibely, you must remember the warnings and directions that I have just given to you." [31]

[22]

Ground 3

The applicant alleges that an "abuse of power" or "abuse of human rights" occurred when the trial judge "threatened" the applicant with "life time imprisonment" and "no chance to appeal". This allegation arises from an exchange between her Honour and the applicant after the applicant tried to dismiss her counsel immediately before his closing address. This was because he refused to address on matters which were not in evidence.
The exchange relied upon by the applicant under this ground is as follows: "HER HONOUR: Ms Li, if Mr Santisi ceases to act for you, you're going to be left in a situation where you've got to give the closing address to the jury yourself. … You won't be able to get another barrister or solicitor to come into this case at this stage. ACCUSED: No. HER HONOUR: It just won't happen. It's a seven week trial. ACCUSED: I respect that. I want to legal represent myself, please, if you let me, your Honour, or - HER HONOUR: Ms Li, this charge carries a life sentence. ACCUSED: Yes. HER HONOUR: You're going to give up on a barrister who's been here for seven weeks, who's across the evidence, who's able to put submissions on your behalf and you want to prevent that barrister from making submissions? … Just you've really got to think about this because if you make this decision, if you're not happy with the outcome from the jury you're not going to be able to appeal in relation to this, because you will have made the decision yourself. You will have decided to get rid of a barrister and solicitor who have been involved in a trial that's now run for seven weeks. … SANTISI: Again, as I said, if Ms Li doesn't want me to address, at the end of the day I can't because I've got no instructions. HER HONOUR: I understand that, Mr Santisi, what I'm trying to do is avoid your client being put in a position where it carries life, of having no legal representation. … SANTISI: In my submission, she'd be extremely disadvantaged in a complex--- HER HONOUR: She would be, and this carried a lift [sic] sentence, Ms Li, there are no more serious offences that one that carries a life sentence so I'd like you to take the opportunity to discuss it with your barrister. … ACCUSED: Yes, your Honour." [32]
As the transcript makes clear, contrary to the applicant's contention, the trial judge was understandably concerned that the applicant should not be unrepresented in a trial for an offence which carries a life sentence and was trying to help the applicant understand the risk she was taking.
The issues raised by the applicant in the above exchange were ultimately addressed by her trial counsel in his closing address.
The matters raised under ground 3 could not and do not raise a doubt or question as to the applicant's guilt.

Bandao v R; Bruce v R

At a glance

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Judgment (24 paragraphs)

Legislation Cited (7)

Cases Cited (17)

Cited By (2)