R v ABDALLAH

T A Game SC/H K Dhanji - Appellant COUNSEL : C P O'Donnell - Respondent Crown

SOLICITORS : David Giddy & Associates - Appellant Commonwealth Director of Public Prosecutions - Respondent Crown CATCHWORDS : Directions to jury - where inconsistency between statement by counsel and evidence of accused - appropriate directions - application of R v Birks (1990) 19 NSWLR 677 - direction on lies - application of Zoneff v The Queen (2000) 200 CLR 234. LEGISLATION CITED : Customs Act 1901 R v Birks (1990) 19 NSWLR 677 Wong v The Queen, Leung v The Queen [2001] HCA 64 CASES CITED: R v Manunta (1989) 54 SASR 17 Browne v Dunn (1893) 6 R 67 Zoneff v The Queen (2000) 200 CLR 234 Edwards v The Queen (1993) 178 CLR 193 DECISION : 1 Appeal upheld; 2 Verdict quashed and a new trial ordered

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

060108/00 SHELLER JA DOWD J KIRBY J

Thursday, 13 December 2001 R v Brian Abraham ABDALLAH

The appellant was convicted of being knowingly concerned in the importation into Australia of a trafficable quantity of cocaine. During the trial, an inconsistency arose between a statement by counsel for the appellant, and the evidence of the appellant himself. The inconsistency concerned when the appellant became aware of the arrival of the package containing cocaine into Australia. The prosecution and the trial Judge suggested that the jury might conclude from this that the appellant had changed his story. The appellant claimed that the trial had miscarried by reason of (1) the trial judge's directions in respect of the conflict between the opening and the evidence of the appellant and (2) the directions on lies purportedly told by the appellant. Held: per Sheller JA, Dowd J and Kirby J agreeing:

1. The trial Judge's direction to the jury on the inconsistency between the opening of counsel and the evidence of the appellant was inconsistent with the approach stated in R v Birks (1990) 19 NSWLR 677.
2. The jury should have been warned that there were other explanations for the inconsistency than that the appellant had changed his story.
3. In a situation where the credibility of the appellant was central to the trial, such a misdirection led to a miscarriage of justice. ORDERS

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

060108/00 SHELLER JA DOWD J KIRBY J

Thursday, 13 December 2001 R v Brian Abraham ABDALLAH

Judgment 1 SHELLER JA: On 29 November 2001, the Court allowed the appeal in this matter, and ordered a retrial of the appellant, Brian Abraham Abdallah. The Court stated that it would give reasons at a later date. My reasons for this decision follow. 2 On 14 February 2000, the appellant was indicted on a count of being knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Customs Act 1901 applied, namely a trafficable quantity of cocaine. The appellant pleaded not guilty and was tried before Judge Howie QC and a jury of twelve. The trial commenced on 14 February 2000, and continued until 18 February 2000, on which date the jury returned with a verdict of guilty. 3 The chief issue at the trial was whether the accused was knowingly concerned in the importation of cocaine. The cocaine entered the country concealed in a suitcase placed inside a package, and was detected by customs officers, who removed the bulk of the drug and left a "delivery sample" hidden in the suitcase. On Friday 8 January 1999, Mr Herman Vasquez arrived at the airport to collect the package, but was told that there was a delay. He left a telephone number, which was the number of the appellant's mobile phone. On Monday 11 January, Mr Vasquez returned to the airport together with the appellant and collected the package. The appellant and Mr Vasquez drove to the appellant's girlfriend's unit, where the package was opened, before disposing of the contents of the package in a waste dumpster. The appellant and Mr Vasquez were arrested shortly afterwards. Mr Vasquez pleaded guilty to a charge of importation of cocaine. 4 At the appellant's trial, the Crown relied on the appellant's presence when the package was opened and the fact that the package was dismantled at his girlfriend's unit. The Crown pointed to the fact that the package was addressed to an unoccupied address which was across the road from the appellant's family home. The appellant's fingerprints were found on plastic bags that had been in the package, and on packing that had been substituted for the cocaine. 5 The appellant's case was that he did not know there were any drugs in the package. He believed that the package contained clothes, and it was not until after the package had been opened that he began to suspect that it might contain narcotics. One important point in the appellant's case was that he was not present on Friday 8 January, when Mr Vasquez first attempted to collect the package. 6 The amended grounds of appeal against conviction were as follows:

1. The trial miscarried by reason of the counsel for the appellant's opening and the trial judge's directions in respect of a conflict between that opening and the appellant's evidence at trial.

1A. The trial miscarried by reason of the trial judge's failure to give appropriate directions on lies purportedly told by the appellant. 2. The trial judge erred in his direction on circumstantial evidence. The second ground of appeal was not pressed. 7 On 27 November 2001, the appellant filed a notice seeking leave to amend the grounds of appeal by adding an appeal against his sentence on the ground that the sentencing judge was unduly constrained by application of the guideline judgment of this Court in R v Wong; R v Leung (1999) 48 NSWLR 340, which had since been overturned by the High Court in Wong v The Queen, Leung v The Queen [2001] HCA 64. The Court did not find it necessary to hear argument from the parties on sentence, as the appeal against conviction was allowed. 8 Both Ground 1 and 1A of the appeal against conviction relate to an inconsistency between statements by counsel for the appellant at trial, Mr Stratton QC, during his opening address to the jury, and statements made by the appellant during examination in chief and cross examination. 9 During his opening address, given on 16 February 2000, Mr Stratton suggested that the appellant became aware of the arrival of the package at the airport on Friday 8 January 1999. "His case is that on the 8th January he did follow his usual pattern….and he did that very thing on Friday morning the 8th January…About lunchtime on that particular day that's Friday the 8th January Herman Vasquez came to Burns Street Campsie…during the course of their association on that particular day there was some mention by Herman Vasquez that he was expecting a package from overseas. There was some mention made that there was a package coming from overseas containing clothing. Now Mr Abdallah's case is that as far as he is concerned, there is nothing terribly important about that. Nothing to get excited about. His case is that he knew for something like a couple of months in the latter part of 1998, the year before, Herman Vasquez had in fact gone overseas. There was nothing unusual as far as Mr Abdallah was concerned about the expectation of Mr Vasquez that there would be some package that was going to arrive that contained clothing." 10 On 16 February 2000, the appellant gave evidence and was cross examined and re-examined. The following questions and answers formed part of the appellant's evidence in chief as to the events of Friday 8 January 1999: "Q. Was there anything said by [Vasquez] before you drove him to Dulwich Hill about a package? A. No. Q. Was there anything said when you did drive him? A. No. Q. Did he ever tell you on that day something about a package that was going to be sent from overseas? A. No. Q. Did he tell you anything about him going out to the airport? A. No." 11 The first questions asked of the appellant in cross examination were as follows: "Q. Mr Abdallah you've made up the story you've just given in evidence to explain why you were in the unit with the suitcase haven't you? A. No. Q. You say that the first time that you knew that there was a package coming in from overseas was on 11 January, that is, the Monday, when you collected it with Mr Vasquez? A. Beg your pardon. Q. Do you say that the first time, the first day that you knew there was a package coming from overseas was on 11 January, the Monday, 1999? A. Package of clothes? Q. A package of anything? A. Yes. Q. You say now do you that the first day, that the Monday was the first day that you knew that anything was coming in for overseas from [Vasquez]? A. Yes. Q. He had not told you anything about it prior to Monday is that right? A. No. Q. You're agreeing with me? A. Yes. Q. Did you hear your counsel open your case before you gave evidence? A. Yes. Q. Did you listen closely to what he said? A. Yes. Q. Did anything he said come as a surprise to you? A. No. Q. Did you hear him say [any]thing in respect of 8 January, Friday, words to this effect 'At lunchtime [Vasquez] came, he didn't have a phone, he borrowed your phone' and there was some mention by him of a package from overseas and clothing. Did you hear your counsel say that before you gave evidence? A. Yes. Q. Did you hear him say that in respect of 8 January, the Friday? A. Yes." Q. And did you think, I wonder why he's saying that? A. No. Q. Because it's your evidence now, you say that you didn't hear anything about the package until Monday? A. Yes." 12 Mr Stratton did not address the apparent inconsistency during his re-examination of the appellant. The Crown placed reliance on this inconsistency in its closing address at trial. 13 The appellant submits that this reliance was reinforced by the trial Judge in his summing up to the jury on 17 February 2000. "The Crown made submissions to you as to why it would be that you would reject the accused as an honest witness, relying of course upon particular answers he gave and the fact that the accused's evidence did not match counsel's opening, on what the Crown says was a significant matter, being the first time he knew of the existence of a carton arriving from overseas. Just on the question of the counsel's opening and whether or not it was consistent with the accused's evidence, you might expect that counsel or certainly competent Queen's counsel, would open a case on what he expected the accused to say according to what instructions counsel had received from the accused. What the Crown submits is that this inconsistency between what counsel expected the accused to say and what the accused did in fact say was not due to any incompetence on Mr Stratton's part, but to the fact that the accused could not get his story straight in relation to his knowledge of, or his involvement with, the carton."

14 On 18 February 2000, Mr Stratton made an application for a discharge of the jury based on this direction, which was refused by the trial Judge. "Mr Stratton: I have got an application to make to your Honour. During the course of the trial what happened was that I opened the case to the jury and the accused then gave evidence and there were discrepancies between my opening and the evidence that the accused made. The Crown very properly made reference to that during his closing address and he also made reference to it during cross-examination of the accused. I made reference to it and I made a certain comment about it. Your Honour made reference to it in relation to your Honour's summing up. What I said in my closing address was that the reason for it could have been that the accused himself because I'd made reference to the accused himself, together, regrettably, the incompetence of his counsel. Your Honour then made some reference to that about the fact that experienced Queens Counsel wouldn't be that incompetent or words to that effect. His Honour: I don't think I said that. Mr Stratton: Pretty close to it your Honour. They are not your Honour's exact words but it was something like that. Now your Honour can do a number of things. One is to do nothing obviously. One thing your Honour can do, apart from doing nothing, your Honour can withdraw the remark. If your Honour does that, that highlights it. My submission is that that wouldn't be sufficient and I would ask your Honour to discharge the jury. His Honour: Where is there any evidence that you are incompetent? Mr Stratton: Pardon? His Honour: I would have thought that if this was a matter of your incompetence, evidence could have been given to the jury to indicate that in fact the instructions given to his counsel and his solicitor were in accordance with your opening. Mr Stratton: Well there was no evidence given of any incompetence at all. There's no question about that. But your Honour referred to it in your Honour's summing up. His Honour: No, but you put it to the jury that it could be because of the accused or it could be because of your incompetence. Mr Stratton: Yes that's exactly what I put. His Honour: Now if it was a matter of your incompetence I would have thought that what would have happened was that you would have led evidence as to the instructions given to your solicitor to show that it was your incompetence. Otherwise why shouldn't the jury take it on the basis that counsel acts on instructions, counsel is Queens Counsel. There is nothing to suggest that counsel has been incompetent. For example if it had been a matter of incompetence of counsel material would have been put to show that they were the accused's instructions and that counsel had been incompetent by not putting his instructions. Mr Stratton: Well no evidence was called along those lines. His Honour: How can they infer that? Mr Stratton: Just the same as they can infer that he told lies. They can make whatever inference they like with respect. Those inferences are open. His Honour: That's because they can examine the accused. They can hear his evidence, they can hear him make explanations. They can hear nothing from you about an application for that. And it seems to me with great respect that it was gratuitous by you to say that from the bar table. There was no evidence at all to indicate that you had been incompetent in not putting your instructions or that in any way had been incompetent. That was in fact simply a remark made by you under submission based without any evidence to suggest that it was so. Mr Stratton: I have made the application your Honour. His Honour: Yes, the application is rejected." 15 During the hearing of this appeal, counsel for the appellant, Mr Game SC, sought leave to lead evidence to demonstrate that the inconsistency was in fact due to an error or misunderstanding on the part of Mr Stratton. Mr Game tendered two affidavits, one of the solicitor for the appellant at trial, Mr Stephen Sukkar, sworn on 3 October 2001, and one of the appellant, sworn on 4 October 2001. The Crown objected to the reading of these affidavits on the basis that they contained further evidence which was, or would have been, available at trial. Mr Game submitted that a miscarriage of justice had occurred and in these circumstances it was appropriate for the Court to hear further evidence. The Court decided, and both counsel agreed, that the best course was to allow the affidavits to be read, and the Crown to cross examine on the material before making a final decision as to its admissibility. Counsel for the Crown cross examined both the appellant and Mr Sukkar. 16 I do not, however, consider that the material tendered in evidence determines this appeal, and accordingly it is not necessary to rule on its admissibility. The crucial issue for this Court to resolve is whether, in the circumstances and regardless of the true cause of the inconsistency between the opening address of Mr Stratton and the evidence of the appellant, the direction given by the trial Judge was appropriate. 17 Counsel for the appellant submitted that the questions and answers quoted above underpinned the Crown's attack on the appellant's evidence. In order to succeed, the Crown needed to persuade the jury to reject the appellant's account. The argument that the accused was making his evidence up gained much of its force from the suggestion that the appellant's claim he did not know about the package on the Friday was a recent invention. Counsel for the appellant submitted that this attack both strengthened the Crown's attempt to discredit the appellant and undermined a significant argument put on behalf of the defence, that the appellant was not present when Mr Vasquez attempted to collect the parcel on the Friday. 18 To my mind, it was the Crown's challenge to the appellant's credibility, based on the discrepancy between the appellant's evidence and the opening statement of his Counsel, that is of critical importance. The first question put to the appellant during cross examination was "You've made up the story you've just given in evidence to explain why you were in the unit with the suitcase haven't you?" The credibility of the accused was a key issue in the trial. As the trial Judge commented in his summing up: "Very few of the facts really are in dispute at all. The majority of the Crown witnesses were never cross-examined and it has never been suggested that any of them have been dishonest or unreliable. In fact, the only witness whose honesty has been called in to question is that of the accused himself and in this case, it is perhaps somewhat unusual for a prosecution case or even an accused's case, that at the end of the day, almost the entire concentration of the submissions that have been made to you have been based upon the accused's evidence and that is because of the way that the trial has unfolded and the fact that very little of the Crown's case is in fact, in any way in dispute." R v Birks 19 Counsel for the appellant submitted that the situation in the present case is analogous to that in R v Birks (1990) 19 NSWLR 677. The appellant in that case had been convicted on charges of maliciously inflicting bodily harm with intent to have sexual intercourse, assault occasioning bodily harm and sexual offences. Counsel for the accused had failed to put to the complainant matters important to the defence case during cross examination. Both the prosecution and the trial Judge addressed the jury on the possible inferences to be drawn from this. 20 At 691, Gleeson CJ adopted the views expressed by King CJ in R v Manunta (1989) 54 SASR 17 at 23: "It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds." 21 Gleeson CJ added his own caution at 691-692: "I would add that one particular matter which makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles….relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth." 22 Counsel for the appellant submitted that in this case, no sufficient caution or circumspection was exercised by the trial Judge in his summing up. To the contrary, his Honour suggested that the only reasonable explanation for the inconsistency was that the appellant could not get his story straight in relation to his knowledge and involvement with the package. But King CJ suggested explanations which did not reflect upon the credibility of the accused. Counsel may have misunderstood his instructions, forensic pressures may have resulted in looseness or inexactitude in the opening remarks. 23 The Crown submitted that the present case was distinguishable in a number of ways from Birks. First, it was said that the comments made in Birks related to the rule in Browne v Dunn (1893) 6 R 67, and not to a decision not to call evidence to correct a misapprehension. 24 In my view this is not a relevant point of distinction. Whether the inconsistency arose because counsel for the accused failed to cross examine the complainant on aspects of the defence case, or because of statements made by counsel in his opening address, the effect is the same. In both situations, a question arises as to whether the conduct of counsel accords with the instructions given by the accused. And in both situations, the discrepancy between what is said or done by counsel for the accused, and the accused himself, may be due to one of several possibilities. The accused may have changed his story since giving instructions to counsel. Counsel may have misunderstood the instructions given to him, or the solicitor may not have correctly conveyed instructions to counsel. Counsel may simply have forgotten a particular part of the instructions, or become confused between the dates of the 8 and 11 January 1999. The point made in Birks and Manunta is that in such a situation, it is necessary for the trial Judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story. 25 A second point of distinction suggested by the Crown between this case and Birks related to the relative experience of the barrister in Birks and that of Mr Stratton in this case. At 685-686 of Birks, Gleeson CJ noted that: "In the present case, the inexperience of trial counsel gave rise to an unusual and extreme situation…There are two features of this case which take it out of the ordinary run. In the first place [the matter on which counsel failed to cross examine] was not only of importance in relation to the events leading up to the sexual assaults, it went to the whole issue in relation to the first charge…Secondly, there were various ways in which the problem, once it became apparent, could have been dealt with…The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better…The barrister simply did not know what to do, and so, until it was too late, he did nothing." 26 It was pointed out by the Crown that the appellant's barrister at trial is one of the most experienced defence counsel practising in New South Wales. He has been admitted to the Bar for 32 years and has been senior counsel for 16 years. It is true that Mr Stratton's level of experience is quite different from that of the barrister in Birks, and that some emphasis was placed in Birks on the inexperience of that barrister. However, I do not consider that this difference is such that the remarks made by Gleeson CJ, adopting what had been said in Manunta, do not apply here. The Court in Birks was also considering an appeal based on incompetent representation at trial, and the remarks by the Chief Justice appear to me to relate more to that aspect of the case than to the question of the appropriateness of the directions given by the trial Judge. 27 As a practical matter, I do not think that this Court should assume that a barrister even of Mr Stratton's experience could not make such a mistake. Experience does not, unfortunately, preclude error. More importantly, as was noted above, this Court is not primarily concerned with the actual cause of the inconsistency. Even if the chance of the inconsistency being due to an error or misunderstanding on the part of counsel for the appellant at trial was small, this should none the less have been suggested as a possibility to the jury. The comment of the trial Judge here, though, allowed for no such possibility. The trial Judge's statement that "you might expect counsel or certainly competent Queen's counsel, to open the case on what he expected the accused to say" is significant. This statement was both factually questionable, since even eminent and experienced counsel on occasion make mistakes, and more importantly, inappropriate given the caution recommended in approaching this subject in Birks and Manunta. The emphasis given to Mr Stratton's competence could only have served to reinforce to the jury that the only explanation for the inconsistency was that the accused had changed his story.

28 Finally, I note that the Crown stressed the fact that counsel for the appellant at trial had several opportunities to clarify the inconsistency that had emerged during the examination in chief and the cross examination of the appellant. Both the barrister and the solicitor of the accused must have realised that something had gone wrong by lunchtime on 16 February 2000, but did nothing to rectify the situation until applying for a discharge of the jury on 18 February. Counsel for the accused, it was submitted by the Crown, could have resolved the matter during re-examination. He could have called Mr Sukkar to give evidence that the accused had in fact given instructions that he did not know of the package until the Monday, 11 January 1999. The failure to take advantage of these opportunities, it was submitted by the Crown, suggests a considered decision. 29 Certainly, Gleeson CJ in Birks considered that, on the facts in that case, "The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better." (at 686) At 692, Gleeson CJ emphasised that the miscarriage of justice in Birks resulted from a combination of factors, all revolving around counsel's failure to cross examine the complainant. These included the conduct of the trial by counsel for the defence and the prosecution, and the directions of the trial Judge. 30 In my view, there is simply inadequate evidence in this case on which to conclude whether the failure to resolve the inconsistency on the part of the appellant's legal advisors was in fact tactical. However, the directions given by the trial Judge were so clearly lacking in the circumspection and caution recommended in Birks and Manunta that the directions resulted in a miscarriage of justice. In summary, there are two aspects of the trial Judge's directions on this matter which indicate that a serious error occurred in this trial. First, the only explanation suggested to the jury for the inconsistency in the appellant's case was that proffered by the Crown, that the accused "could not get his story straight". Second, by emphasising the competence of counsel for the accused, and suggesting that it was unlikely that the mistake was due to him, the trial Judge effectively eliminated a possible explanation for the inconsistency, a mistake by Mr Stratton.

Zoneff v The Queen 31 The appellant also sought leave to rely on an additional ground of appeal. The appellant's submission was that in making the comments that he did as to the inconsistency, the trial Judge was necessarily suggesting that the accused had lied, and accordingly a direction should have been given in accordance with Zoneff v The Queen (2000) 200 CLR 234. The High Court's decision in Zoneff was handed down after this trial had occurred. 32 In Zoneff the prosecution had not presented the case as one in which lies by the accused indicated a consciousness of guilt on the part of the accused. If such a suggestion is made, then a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 will generally be required. Another possible way in which the prosecution can make use of lies is to attack the credibility of the accused. Gleeson CJ, Gaudron, Gummow and Callinan JJ suggested at 245 that: "A direction which might appropriately have been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: 'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt'. " 33 Their Honours noted that "A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew that the truth would implicate him or her in the commission of the offence."

34 I accept the appellant's submission that in suggesting that the accused could not get his story straight, both the Crown and the trial Judge were necessarily suggesting that he was telling lies. However, the majority in Zoneff did not suggest that in every case where there is a suggestion that the accused has lied, such a direction must be given. Their Honours indicated that such a direction may well be adaptable to a situation where there is a risk of misunderstanding about the significance of possible lies. The Crown submitted that this meant that a Zoneff direction need not be given in every case where the credibility of the accused was attacked. 35 Certainly, there was some emphasis in the majority judgment in Zoneff on the unusual circumstances of that case. These circumstances were that the prosecutor did not at any point suggest, even impliedly, that the accused told lies because of a consciousness of guilt. Despite this, the trial Judge was evidently concerned that, having regard to some of the cross examination, there was a serious risk that the jury might engage in an impermissible process of reasoning as to the matter of lies. In this situation, their Honours found, the trial Judge should not have given an Edwards direction, but rather the direction set out above. 36 The submission of the appellant was that there was a real risk that the jury would use the lie in an impermissible manner, in circumstances where the only issue in the trial was the credibility of the accused. 37 Given the success of the first ground of the appeal against conviction, it is not necessary in this case to explore the scope of the principle stated in Zoneff. 38 DOWD J: I agree with the draft judgment of Sheller JA. 39 KIRBY J: I agree with the reasons of Sheller JA. ******

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