Kho v R

Ground 1: His Honour erred in admitting irrelevant evidence relating to surveillance of the appellant and the co-offender Loh from their hotel at Chatswood to Starbucks in the city at Haymarket. Leave is required pursuant to Rule 4.

Ground 2: His Honour erred when he left the question of an asserted lie being evidence of consciousness of guilt to the jury.

Ground 3: Leave is sought to adduce fresh evidence from the co-offender Loh.

Ground 4: The trial judge entered the arena and unnecessarily interrupted the flow of cross-examination by trial Counsel for the appellant. 13During the course of the hearing of the appeal it became apparent that there was a significant issue in relation to the competency of the appellant's defence at trial. Leave was sought, which was not opposed by the respondent, to amend the Notice of Appeal to add an additional ground in the following terms:

The incompetence of counsel in preparation and running of [the appellant's] trial, in particular by failing to ascertain whether or not the witness, Loh, was able and willing to give evidence consistent with the sentencing proceeding evidence of Loh and the [appellant] and to neutralise the evidence of association between the [appellant] and Loh in the trial of the applicant thus occasioned a miscarriage of justice. 14This further ground of appeal was prompted by evidence which was given by Loh at his sentence hearing and at the sentence hearing for the appellant. 15In short Loh gave evidence that he was related to the appellant; that he had a conversation with the co-offender Tan which did not include the appellant; that he (Loh) was told the combination of the lock on the case; that he bought the plastic bags; that he had received the sum of $40,000 for his part in the enterprise and that the appellant was not present when he received that money and nor did he tell the appellant about it; that he did not tell the appellant any details about why they were going to meet Tan in Chinatown, that they had known each other for a long time and would often do things together and the appellant just followed him on that day; he repeated what he had said in earlier evidence that he had offered the appellant accommodation for his stay in Sydney; that he recalled that the appellant grabbed the bag but he did not ask him to; the appellant just did it automatically and he (Loh) did not realise the seriousness of the appellant taking the bags as he was just to await instructions and then hand the bag to another person. He said he did not tell the appellant what to do and he did not know himself what he was to do next, until he received instructions on the telephone. He said that he did not tell the appellant that he was to get further instructions on the telephone. 16The appellant's defence at his trial was consistent with the account of the relevant events which Loh gave at the sentencing hearing. Loh was arraigned together with the appellant and pleaded guilty. Having admitted his guilt the obvious question, given the appellant's version of the events, was whether Loh was able to give evidence to support the appellant's account of the events. That issue was not raised by defence counsel. 17The appellant and Loh were arraigned together. Counsel for the appellant must have had instructions by that time that his client said that he had innocently become caught up in Loh's illegal activities. Given that Loh admitted his involvement in the enterprise it should have been obvious to defence counsel that his best course in defending his client would be if Loh was prepared to give evidence in which he confirmed that the appellant had no knowledge of the enterprise. The appropriate course to take was to seek to interview Loh to determine the evidence which he might be able to give in the appellant's trial. 18The evidence which Loh ultimately gave both at his own sentence hearing and at the appellant's sentencing hearing, if accepted by a jury, would have led to the appellant's acquittal. Loh gave evidence in similar terms to this Court. Although some aspects of Loh's evidence would need careful consideration, if it was accepted, it confirmed that the appellant had no knowledge of and was not a participant in the enterprise in which Loh was a participant. 19The competence of counsel and its relevance to the trial of an accused person has been the subject of consideration on many occasions. As Gleeson CJ emphasised in Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301, a criminal trial is conducted as adversarial litigation. The Chief Justice said at [9]: "A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise." 20The Chief Justice emphasised that when the competence of counsel is raised as a ground of appeal the relevant inquiry will be as to whether the trial and its process was fair. Because the trial is adversarial litigation considerations of fairness often turn upon the choices made by counsel at a trial. As happened in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR124, a failure by trial counsel to call evidence, which it was later submitted would have been of assistance to the appellant, may not occasion a miscarriage of justice because, when viewed objectively, counsel's decision was rational. As Gleeson CJ said: "It is the fairness of the process that is in question; not the wisdom of counsel. ... The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct." 21Gleeson CJ emphasised that it is not necessary that every tactical decision of counsel be carefully considered or appropriate before a trial is fair. Furthermore, in Nudd Gummow and Hayne JJ emphasised that although the conduct of trial counsel may be described as incompetent that will not of itself be sufficient to ground a successful appeal. Their Honours said at [24]: "Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial." 22In the present case defence counsel gave evidence before this Court. It is apparent that, most likely through inexperience, he did not identify the fact that once Loh had pleaded guilty he may be able to give evidence in the appellant's trial which, if accepted, would have led to his acquittal. There was no tactical or forensic reason why the appellant's counsel did not seek to have Loh give evidence. It is plain that he should have taken this course. 23I am of the opinion that, for this reason, the appellant was incompetently represented at his trial. Counsel should have questioned whether Loh could give evidence to support the appellant's account. It may be assumed from the fact that he gave that evidence at the sentencing hearing that he would have done so. If Loh's account was to be accepted by a jury the appellant's acquittal would be inevitable. There was no direct evidence of the appellant's involvement in the criminal enterprise. No telephone message was intercepted which could have related to the offence and there was no suggestion that he received any money or other reward for his involvement. Although he admitted purchasing the plastic bags he provided an apparently innocent explanation which the jury could accept. When Loh met with Tan the CCTV footage disclosed that the appellant did not join them in any conversation and for a significant period was absent purchasing refreshments. 24I would uphold this ground of appeal, quash the conviction and order a new trial.

Ground 1 25The submission in relation to this ground of appeal was that the trial judge erred in admitting evidence of the surveillance of the appellant and Loh from the time they left their hotel at Chatswood. It was submitted that the evidence had no relevance and that its prejudicial effect was significant. The prejudice was said to arise from the fact that by instituting surveillance it was apparent, and the jury would have understood, that the police held suspicions about both the appellant and Loh. Although it was accepted that Loh was the cause of the surveillance it was alleged that the police had no information about any involvement of the appellant in illegal drug dealing. 26The submission is without substance. The case against the appellant was that he was engaged in a joint criminal enterprise with the co-offender Loh. The surveillance evidence was relevant and admissible to prove that the two men were staying together at the same hotel and that they travelled from there to the Starbucks cafe for a meeting with Tan where heroin was delivered. It was the Crown case that the purpose of the appellant and Loh travelling together for a significant distance after which they would have a short meeting with Tan was clearly for "business" rather than social purposes. 27The appellant emphasised that in the course of its deliberations the jury asked a question of the trial judge in the following terms: "How much weight does circumstantial evidence have? Are we able to know why Koh and Loh were under surveillance?" 28In response to this question the trial judge told the jury: "The simple answer to that is no, it's not part of the evidence and you must not speculate on what might have attracted the AFP and the New South Wales police force to do. What you need to look at is what happened from that point when they started the surveillance and what the evidence there describes. That is what is important in this case. Why the police happened to be there is irrelevant to your considerations. You should not embark upon any speculation on those matters." 29It may be that the police originally had suspicions in relation to Loh, but not the appellant. However, when, as it happened, the appellant accompanied Loh to meet Tan the fact that they travelled together was relevant. The direction by the trial judge was adequate to dispel any suggestion of unfair prejudice arising from a suggestion of unfounded suspicions with respect to the appellant. 30No objection was taken, at the trial either to the admission of the evidence nor the direction given by the trial judge. The probative value of the evidence was significant. Any potential for unfair prejudice was adequately addressed by the trial judge's direction. 31I would refuse leave to raise ground 1 of the appeal.

Ground 2 32In the course of his ERISP the appellant was asked to give an estimate of the age of the man Tan. There was no evidence that the appellant had previously met Tan and accordingly the impression he may have formed of his age was confined to their brief meeting at Starbucks. 33The ERISP comprises 457 questions. Although the appellant understands and is reasonably fluent in English it is plain that English is not his first language. 34Question 138 in the ERISP reads as follows: "Q: OK. With the bag this morning, did you know that you were going to meet with somebody? A: No." 35He then explained to the police that he went with Loh whom he thought was going to meet a friend but he had never seen the "other person" (Tan) before and he did not know his name or anything about him. 36He was asked about the age of the "other person" (Tan) and gave the answer: "Q375 Well do you remember anything about him, was he young, old, was he about your age? A I think should be around middle age." 37The trial judge permitted the prosecution to submit to the jury that out of a consciousness of guilt the appellant had lied about the age of Tan to avoid Tan being identified and possibly providing the police with information that would implicate the appellant. The particular answer that was emphasised by the prosecution was the appellant's description of Tan as "around middle age." 38No complaint is made about the direction given by his Honour which was in conventional terms when the prosecution submits that an accused person has lied from a consciousness of guilt. However, the appellant's submission was that the matter should not have been left with the jury at all. It was submitted that both the suggestion that the appellant lied and, if he did so, it was from a consciousness of guilt were not open. 39To my mind the appellant's submission should be accepted. Identification of a person's age is always difficult, particularly if the meeting with them is brief. Furthermore, the description "around middle age" is vague and carries with it the necessity to identify what the speaker considers to be middle aged. It will vary from person to person. To conclude (as the prosecution invited the jury to do) that in these circumstances the appellant had lied and furthermore lied out of a consciousness of guilt was, to my mind, not open. 40It is of course not possible to discern whether the jury concluded that the appellant lied. Accordingly, whether the issue played any part in the jury's decision is unknown. For my part, although I am satisfied the issue should not have been left with the jury, I do not believe that it occasioned a miscarriage of justice. The jury could be expected to understand that estimates of age are always liable to be erroneous, often to a significant degree. 41Although I would uphold this ground of appeal I would not for that reason have quashed the conviction.

Ground 3 42The co offender Loh gave evidence at his own sentencing proceedings. On that occasion he told the court that he knew he was collecting drugs and would be required to deliver them to another party. He also told the court that the appellant was not involved in the enterprise. I have previously referred to Loh's account. 43As a result of Loh giving this evidence the trial judge (the same judge presided at both hearings) and the Crown prosecutor took the view that the appellant should be alerted to the evidence which had emerged. As it happened and, no doubt because of knowledge of the evidence which Loh could give, Loh was called to give evidence on behalf of the appellant during his sentence proceedings. Although the evidence was received, the trial judge correctly ruled that it traversed the plea and was not admissible in relation to the appellant's sentence. 44An application was made that Loh's evidence should be received as fresh evidence in this Court. However, as was recognised in the course of submissions, because the evidence was available to the appellant at the time of his trial and reasonable diligence could have brought it forward that submission must be rejected: see Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516; R v Saleam (1989) 16 NSWLR 14 at [2]; R v Boag (1994) 73 A Crim R 35, at 38 and MRW v The Queen [2011] NSWCCA 260 at [45]-[54]. The consequence must be that this ground of appeal is rejected, although for the reasons I have indicated ground 5 should succeed.

Ground 4 45The trial judge is a very experienced criminal lawyer. As the transcript of this trial makes plain his Honour accepts the burden of ensuring that a trial before him is fair to an accused person but also efficiently conducted. 46In recent years there has been a growing concern amongst judges and, others, including advocates involved in the criminal trial process, about the length of time that criminal trials have been taking. The availability of intercept material and surveillance evidence has significantly increased the length of many trials. This is especially true of trials involving the illegal importation or supply of prohibited drugs where sophisticated investigative procedures are often utilised. On occasion when these trials have been conducted without a focus on the efficient management of evidence following an analysis of the issues in dispute, jurors have become distracted and the trial has miscarried. Inefficiency in the trial process can cause serious injustice to an accused and significantly increase the costs of the trial, including the costs of providing the court, the prosecutor and in many cases legally aided defence counsel. 47In a response to these problems in 2008 the Attorney-General established a working group to review efficiencies in criminal trials. In 2009 the working group released a report publishing its findings. The recommendations of the report resulted in the Criminal Procedure Amendment (Case Management) Act 2009, designed to provide judges with the power to ensure the efficient management of trials. 48At an early stage of the appellant's trial his Honour made plain to counsel that he intended to ensure that the trial proceeded efficiently. Amongst other matters he told counsel that he would not allow the proceedings to be stalled or delayed. He added, no doubt for emphasis, "if necessary we'll sit through weekends." The latter remark was not necessary but no doubt served to emphasise his Honour's determination that the trial should be efficiently conducted. 49Throughout the trial there were a number of occasions on which the trial judge intervened when prosecution witnesses were being cross-examined. It is not necessary to reproduce extracts from the transcript. However, it is apparent that his Honour formed the view that defence counsel lacked the experience to effectively represent the appellant. 50Consideration of a number of his Honour's interventions does leave the impression, which no doubt was held by the jury, that his Honour had little confidence in the ability of defence counsel. It was submitted by the appellant that his Honour's interjections were of such frequency that defence counsel was effectively bullied and for this reason was unable to effectively discharge his obligations to his client. It was submitted that some of his Honour's interventions were designed to humiliate defence counsel and control the manner in which his case was conducted although his Honour was not privy to the appellant's instructions. It was submitted that trial counsel was unable to develop effective lines of cross-examination due to continuous interruption. 51It is an inevitable consequence of the adversarial system that there may from time to time be an imbalance in the competence of the prosecutor and defence counsel. There will always be difficulties when the trial judge comes to the view that, through lack of experience or incompetence, an accused person is not being effectively represented. The trial judge has an obligation to ensure that an accused person receives a fair trial and on occasion this may require the trial judge to enquire of counsel as to the relevance of a particular question or the appropriateness of a particular submission. However, if interventions are made in the presence of a jury there is always a risk that the jury will interpret the apparent inadequacies of trial counsel in a manner which reflects adversely upon the accused. If a trial judge believes such interventions to be necessary it is better that the issue is pursued in the absence of the jury. 52It is undoubted that a trial judge has power to intervene in the questioning of a witness to assist in an understanding of the evidence which the witness can give. However, the power should be exercised with care to ensure that the intervention by the judge does not impede the development by trial counsel of the case he or she has been instructed to develop. 53A perusal of the transcript in the present case confirms, as was admitted by counsel who appeared for the appellant in this Court, that defence counsel at trial lacked the experience necessary to effectively represent his client. The concern which the trial judge obviously held that the appellant was not being competently represented was plainly justified. As the trial progressed his concerns increased and his intervention became more pointed. 54Although the jury would no doubt have formed the view that the trial judge lacked confidence in defence counsel's capacity, I am not persuaded that the nature or extent of the interventions by the trial judge caused the trial to miscarry. Because of the surveillance material the prosecution case was not, in reality, open to challenge. The jury's decision did not depend upon the effective cross-examination of any witness but on the inference to be drawn from the uncontested facts. 55Although his Honour's interventions were significant and at times occurred when it would have been better if the jury were not present, I am not persuaded that for that reason the trial miscarried. I would reject this ground of appeal.

56The appellant sought to agitate grounds of appeal in relation to his sentence. In the circumstances it is not necessary to consider these matters. I would make the following orders:

1. Appeal upheld.
2. The conviction in the District Court is quashed.
3. Order that there be a new trial. 57JOHNSON J: I agree with McClellan CJ at CL. 58GROVE AJ: I agree with McClellan CJ at CL.

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