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[2002] NSWCCA 160
appellant. Appeal allowed; conviction quashed; new trial ordered. The appeal against sentence was not considered: [39].
The jury was told to consider whether there was a reasonable chance, on the balance of probabilities, that the accused’s explanation was true. The Court considered this risked shifting the burden onto him. The jury also did not receive an adequate explanation of how his good-character evidence related to credibility and the likelihood of offending. In addition, he was questioned without leave about irrelevant and prejudicial matters. The Court quashed the conviction and ordered a new trial. The judges differed on whether the prosecutor’s repeated accusations that the appellant was a liar independently warranted allowing the appeal.
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In R v Soto-Sanchez [2002] NSWCCA 160, the New South Wales Court of Criminal Appeal considered an appeal against a conviction for possessing prohibited imports, and an application for leave to appeal against sentence. The appellant, Ferney Soto-Sanchez, had been convicted under s 233B of the . The indictment alleged that on 4 November 1999, without reasonable excuse, he possessed a commercial quantity of cocaine that had been imported into Australia [2].
No linked legislation citations have been extracted yet.
The Crown case arose from a police-controlled delivery. Two Spanish nationals, Salvador Salgado-Silva and Juan Cordero-Vidal, arrived in Sydney on 3 November 1999 with cocaine concealed in specially constructed video camera battery belts. The police arranged for them to take the drugs to a hotel room under police surveillance, using audio and video recording [4].
The Crown alleged that Soto-Sanchez visited Salgado-Silva at the hotel, returned later, and helped move the battery belts into a suitcase. He left the hotel carrying that suitcase and was arrested nearby. The suitcase contained the battery packs and cocaine. When questioned at arrest, he said, “I don’t know anything” [4].
Soto-Sanchez’s account was that he had gone to the hotel to help the men see the city or meet other people. He said Salgado-Silva showed him blue packets, but he did not know they were drugs. He also said he returned with a backpack because he planned to go shopping, and understood that he was helping move luggage and a video camera [6]. Thus, the contested questions at trial included whether he carried the suitcase and whether he knew, or believed, it contained drugs. Smart AJ later summarised these as the two issues at trial [41].
A jury found him guilty on 14 December 2000. The trial judge imposed a sentence of 24 years’ imprisonment, with a non-parole period of 18 years [2]. The Court of Criminal Appeal allowed the conviction appeal, quashed the conviction, and ordered a new trial. As a result, it was unnecessary to consider the sentence appeal [39].
Stein JA’s principal concern was the final direction about the appellant’s explanation. The trial judge first gave conventional directions on the Crown’s onus and the criminal standard of proof. But, when addressing the defence account, the judge asked whether there was “a reasonable chance on the balance of probabilities” that the account was true, and said that if so the jury must acquit [8]–[14].
Stein JA considered that wording carried a real risk of reversing the burden of proof. The jury might understand that it could convict unless it was satisfied, on the balance of probabilities, that Soto-Sanchez’s version was true [17]. That is not the relevant test. An accused does not have to establish an explanation to any standard. The jury may reject some or all of the defence evidence and still have a reasonable doubt, and it may have a reasonable doubt even if the accused gives no explanation at all [18].
The placement and effect of the direction also mattered. Stein JA said it was liable to confuse or mislead the jury about the burden and standard, and could restrict its consideration of reasonable doubt in light of the prosecution evidence. It was virtually the last advice given before the jury retired [22]. Stein JA described the error as fundamental and as going to the root of the trial, so that it caused a miscarriage of justice [23]. Sully J agreed with Stein JA’s reasons [40].
The character direction was a separate concern. The appellant had put his good character in issue. The trial judge referred to the appellant’s claim to be of good character, his admitted lies in the first police interview, and the Crown’s questions suggesting otherwise. The judge told the jury that it could assess the matter and that imperfect character did not itself make the appellant guilty [26].
Stein JA considered that this did not explain the two relevant uses of good-character evidence identified in the appeal submissions: its bearing on credibility and its bearing on the likelihood of the appellant committing the offence. The trial judge should have directed the jury on both aspects, or raised the matter with counsel before settling the direction [27]–[29]. The omission mattered because the jury’s assessment of credibility was important to the case.
The Court also considered questions about whether the appellant slept in the same bed as a prostitute and whether he had ever paid tax. The Crown accepted that leave was required under s 112 of the Evidence Act, but leave had not been sought [30]. The tax question was allowed over an objection; the appellant was required to answer the questions about living arrangements despite objecting himself [31]–[32].
Stein JA regarded the matters as irrelevant and prejudicial. The judgment says that, had leave been sought, the court could have considered exclusion under s 137 and the discretion under s 192(2), including the matters identified in the judgment [33]. The potential prejudice was especially significant because credibility was central, and the trial judge had referred to Crown questions as suggesting that the appellant was not of good character [34]. Stein JA concluded that this ground, considered with the failure to give a proper character direction, raised prejudice that could amount to a miscarriage of justice [34].
There was a difference of view on the prosecutor’s repeated accusations that the appellant was a liar. Stein JA accepted that the prosecutor could cross-examine about admitted lies, but considered that this ground alone should be refused under r 4 of the Criminal Appeal Rules because no objection had been made at trial [35]–[38]. Smart AJ considered the general accusations impermissible, unfair, and capable of creating illicit prejudice. He would also have allowed the appeal on that ground [42]–[45]. That disagreement did not affect the orders, because grounds 1, 2 and 3 were sufficient.
The judgment is an application of principles about criminal proof and trial fairness, not a stated replacement of those principles. Stein JA expressly noted that the jury could retain a reasonable doubt despite rejecting defence evidence or receiving no explanation from the accused [18]. The judgment’s central point is that directions about an accused’s account must not make the accused responsible for proving it.
The Court connected that concern with authorities cited by counsel, including R v Wilde (1998) 164 CLR 365 and Mraz v The Queen (1955) 93 CLR 493 at 514. Those authorities appear in the judgment in the context of the submission that the error went to the essential requirements of a fair trial [19]. The judgment does not set out their reasoning in detail, so its treatment here should not be taken as a fuller account of those decisions.
On good character, Stein JA accepted that the jury should have been directed on the evidence’s relevance to credibility and likelihood of offending [27]–[29]. The judgment refers to The Queen v Chai [2002] HCA 12 when explaining why it was addressing the remaining appeal grounds despite deciding the appeal on ground 1 [24]. It does not reproduce a broader statement of the law from Chai.
On cross-examination, the Crown conceded that leave was required for the questions at issue under s 112 of the Evidence Act [30]. Stein JA identified s 137 and the discretion in s 192(2) as relevant safeguards that would have required consideration if leave had been sought, and referred to R v Stanoevski (2001) 202 CLR 115 [33]. The judgment does not state that every question about tax or accommodation is inadmissible; its assessment concerned the questions asked in this trial and their relevance and prejudicial effect.
The practical “after” state in this case was procedural: the conviction was quashed and a new trial ordered. The Court did not decide whether Soto-Sanchez was guilty, resolve the factual dispute about his knowledge, or determine the sentence appeal [39]. The text provided contains no account of later judicial treatment of this decision, so it does not support a claim about how subsequent courts have applied it.
At [18], Stein JA stated: “A reasonable doubt can be left even where the accused gives no explanation for his conduct.” In plain English, the accused does not have to supply a convincing alternative story. The question remains whether the Crown has proved the charge beyond reasonable doubt.
At [17], Stein JA identified the risk that the jury might understand it could convict if it was not satisfied on the balance of probabilities that the appellant’s version was true. This explains why the phrase “reasonable chance on the balance of probabilities” was problematic: it could make the defence account seem like something the accused had to prove.
At [23], Stein JA said the direction “went to the very root of the trial.” This was not treated as a minor verbal slip. The concern was that it affected the jury’s understanding of the basic burden and standard of proof.
At [28], Stein JA said the trial judge should have given the necessary character direction on both limbs, or raised the matter with counsel. In practical terms, the jury needed to understand why good character might matter, rather than simply being told to weigh the appellant’s character and credibility generally.
Smart AJ’s separate view is captured at [43], where he said some cross-examination had the effect of stirring up “illicit prejudice”. He considered that the repeated, general accusations of lying could unfairly influence the jury beyond the proper testing of particular evidence [42]–[45]. This was Smart AJ’s view of ground 4, not Stein JA’s conclusion on that ground.
The decision is directly relevant to a trial in which the jury is invited to assess an accused’s explanation using language that could suggest the accused must establish its truth. The specific concern is a direction that links reasonable doubt to whether the accused’s account is likely or proven, instead of keeping the Crown’s burden at the centre of the inquiry [17]–[23].
The judgment also identifies a situation in which an accused relies on good-character evidence but the jury is not told how that evidence may bear on credibility and the likelihood of committing the offence [27]–[29]. The issue is particularly material where the accused’s credibility is central to the contest at trial, as Stein JA noted in discussing both the character direction and the cross-examination [34].
A further relevant pattern is questioning about matters such as tax or personal living arrangements where leave is required, the matters have little or no relevance to the charge, and the questioning risks prejudice. The decision emphasises that the required leave and statutory safeguards must be addressed, rather than treating the questioning as harmless simply because it occurred in cross-examination [30]–[34].
The judgment also discusses repeated general accusations that an accused is a liar. Its treatment must be stated carefully: Smart AJ regarded the questioning in this case as impermissible, while Stein JA considered that ground alone subject to r 4 because there had been no objection [37]–[45]. The case therefore records differing judicial views on that ground rather than a single shared explanation for allowing it.
The supplied judgment text reports no later decisions applying, distinguishing, or criticising Soto-Sanchez. It therefore does not provide a basis for describing subsequent treatment or the current reach of the decision.
Within the decision itself, the judges agreed on the orders and on grounds 1–3: Sully J agreed with Stein JA, and Smart AJ expressly agreed with Stein JA on those grounds [40]–[41]. Their views on ground 4 differed. Stein JA would refuse leave on that ground alone under r 4, while Smart AJ would reject the r 4 point and allow the appeal on ground 4 as well [38], [45]. The shared disposition rests securely on the grounds all three judges accepted, particularly the burden-of-proof direction.
The judgment cites Wilde, Mraz, Chai and Stanoevski for particular purposes, but the text does not provide a subsequent-treatment history of those authorities or of this case. Any account of later citations would require material beyond the judgment supplied here.
The judgment does not decide the factual question whether Soto-Sanchez knew or believed the suitcase contained drugs. Smart AJ’s summary confirms that possession and knowledge were the two issues at trial [41], but the appeal concerned the fairness and legal adequacy of the trial process. The new trial order left the factual issue unresolved.
Nor does the judgment set out a model direction for every case involving an accused’s explanation. It identifies the danger in the particular wording used and states the governing point that reasonable doubt can remain despite rejection of defence evidence [17]–[23]. It does not prescribe a complete standard summing-up for all factual settings.
The treatment of good-character evidence is also confined to the appeal before the Court. Stein JA endorsed directions on credibility and likelihood of offending in this case [27]–[29], but the judgment does not discuss every possible qualification or factual variation in character evidence.
Finally, the difference on ground 4 leaves the decision’s treatment of unobjected-to offensive questioning less uniform than its treatment of the other grounds. Smart AJ considered the questions impermissible and prejudicial, while Stein JA would not allow that ground by itself under r 4 [38], [42]–[45]. The judgment does not resolve that difference through a single common rationale.
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CITATION : R v Soto-Sanchez [2002] NSWCCA 160 FILE NUMBER(S) : CCA 60225/01 HEARING DATE(S) : 19 April 2002 JUDGMENT DATE : 10 May 2002
PARTIES : Ferney Soto-Sanchez (Appellant) Regina (Crown) JUDGMENT OF : Stein JA at 1; Sully J at 40; Smart AJ at 41
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0567 LOWER COURT JUDICIAL Woods ADCJ OFFICER :
COUNSEL : P R Boulten (Appellant) M M Cinque (Crown) SOLICITORS : R F Bergagnin (Appellant) Commonwealth Director of Public Prosecutions (Crown) CATCHWORDS : CRIMINAL LAW - possession of prohibited imports - Customs Act 1901, s 233B - appeal against conviction - leave to appeal against sentence - whether trial miscarried - directions to jury - onus and standard of proof - evidence of good character - direction on character - cross-examination of accused without leave - offensive cross-examination of accused - D Customs Act 1901, s 233B LEGISLATION CITED : Criminal Appeal Rules, r 4 Evidence Act, s 41, s 112, s 137, s 192 Mraz v The Queen (1955) 93 CLR 493 CASES CITED: The Queen v Chai [2002] HCA 12 (14 March 2002) R v Stanoevski (2001) 202 CLR 115 R v Wilde (1998) 164 CLR 365 DECISION : 1) Appeal allowed 2) Conviction of appellant quashed 3) New trial ordered.
IN THE COURT OF CRIMINAL APPEAL 60225/01
STEIN JA SULLY J SMART AJ
Friday, 10 May 2002 Regina v Ferney SOTO-SANCHEZ Judgment 1 STEIN JA: Introduction 2 On 14 December 2000 the appellant, Ferney Soto-Sanchez, was found guilty by a jury of a charge under s 233B of the Customs Act 1901. The indictment maintained that on 4 November 1999 the appellant did, without reasonable excuse, have in his possession prohibited imports which had been imported into Australia, to wit a quantity of cocaine being not less than a commercial quantity. On 23 March 2001 the appellant was sentenced by Acting Judge Woods to imprisonment for a term of 24 years, to date from 4 November 1999, with a non-parole period of 18 years fixed. 3 The appellant appeals against the conviction and also seeks leave to appeal against the sentence.
The Crown case 4 The following is an edited summary of the Crown case taken from its written submission: On 6 February 1999 the appellant arrived in Sydney from Columbia. He subsequently obtained rental accommodation in Pyrmont and worked as a labourer. On 26 September 1999 two Spanish nationals, Salvador Salgado-Silva and Juan Cordero-Vidal travelled from Spain to Miami, USA. On 8 October 1999 they travelled from Miami to Venezuela. Three weeks later they travelled to Curacao, Netherlands Antilles, and then to Amsterdam, Holland. … On 3 November 1999 they arrived in Sydney airport on a flight from Amsterdam. Silva's accompanying luggage included a metal suitcase which was later found to contain 12.862 kilograms of 63% pure cocaine powder (totalling 8.105 kilograms of pure cocaine) concealed in two specially constructed video camera battery belts. After a preliminary examination of the battery belts revealed the presence of cocaine, members of the Australian Federal Police … were called and Salgado-Silva and Cordero-Vidal were arrested … They both agreed to assist police in a "controlled delivery" of the drugs and they were taken to room number 302 in the Furama Hotel at Darling Harbour (sic Surry Hills) the next day. The AFP set up in room 301 to monitor events, including by way of video and audio recording. The battery packs, containing all the cocaine less some small samples … were taken along with the other items of luggage to the room. At about 12.26pm Salgado-Silva made an outgoing telephone call to "Octavio Quintero" in Spain. He gave Quintero the hotel telephone number and room number. Quintero said that he would contact someone and that person would telephone Salgado-Silva soon. A short time later an incoming call was received in room 302. Salgado-Silva answered. The caller asked where Salgado-Silva was located and he told him "Furama Central Hotel … 28 Albion Street … Surry Hills". The caller said that a person would "soon" attend on Salgado-Silva and that he should take a walk with that person. Salgado-Silva said he preferred not to leave the Hotel room. At about 2.57pm the appellant knocked on the door of room 302 and Salgado-Silva was seen to leave the room with him. They went for a walk along Albion Street and appeared to converse. Salgado-Silva returned to room 302 a short time later. At about 4.00pm Salgado-Silva telephoned Quintero again and told him that he was concerned about things the appellant had said to him. Quintero indicated "they" were concerned that he had not telephoned Quintero the day before and told him to "follow their instructions". About 4.30pm the appellant returned to room 302 and went inside. Salgado-Silva opened the silver metal bag, which contained the two battery straps, and he and the appellant appeared to have a conversation. Salgado-Silva then closed the silver suitcase and a short time later the appellant left the room. At about 8.19pm the appellant again entered room 302, carrying an empty black back pack. The appellant … assisted Salgado-Silva as he removed the two battery straps from the metal suitcase and placed them into a light coloured bag. They were unable to close the bag and Salgado-Silva then put it into the silver suitcase. Cordero-Vidal then emptied the contents of the light coloured bag into the silver suitcase while Salgado-Silva obtained a dark coloured suitcase, tipped the contents of that bag on to the bed and then removed the battery packs from the silver suitcase and put them in the dark suitcase. After Salgado-Silva had fastened the bag the appellant lifted it up. At about 8.23pm Salgado-Silva and the appellant left room 302. The appellant carried the black suitcase containing the battery packs. The black back pack he brought to the room was left there. The appellant was arrested in the vicinity of an elevator near room 302 with the black suitcase in his hand. When asked by police what he was doing he replied "I don't know anything". When asked who owned the bag he again replied "I don't know anything". In his possession at the time of his arrest was an amount of cash totalling $930 plus a piece of paper with the handwriting "28 Albion Str, Surry Hills, Hotel Furama Central". 5 The appellant made two records of interview with police, the first was after his arrest and the second on 18 August 2000 made at his request. In the second interview the appellant indicated that some of what he had said in the first interview was false.
The Defence case 6 The appellant gave evidence which may be summarised as follows. He said he had gone to the hotel on the first occasion and asked Salgado-Silva if he wanted to go sightseeing or to have a coffee. Notwithstanding Salgado-Silva's refusal on the ground he was too tired the appellant 'insisted' and they then went out for a walk. They talked about unimportant things such as Salgado-Silva's trip to Australia. On leaving Salgado-Silva the appellant returned to his flat and found his cousin Soto-Gallo there. He asked the appellant to return to the hotel to ask the men to come to the flat so they would not have to spend the whole day in the hotel. That offer, on his return to the hotel at about 4.30pm, was declined but whilst there Salgado-Silva showed him some 'blue packets' which he was offering him. The appellant told Salgado-Silva he was confusing him with someone else and he was just there to take him to the flat.
The appellant said he returned that evening carrying a back pack and the money because he proposed to do some shopping later that evening. Salgado-Silva asked if he could borrow his back pack because 'he had to take some things' and asked if he would assist him with taking a camera. The things did not fit into his back pack and Salgado-Silva then put the things into a suitcase and carried it from the room, whilst the appellant carried a video camera.
The Grounds of Appeal 7 There are four grounds of appeal against conviction. They are as follows: 1. The trial miscarried because his Honour erred when directing the jury about the onus and standard of proof. 2. His Honour failed to direct the jury about the manner in which they should deal with the evidence of the appellant's good character. 3. The trial miscarried because the appellant was cross examined without leave about sharing premises with prostitutes and about not having paid tax. 4. The trial miscarried because of offensive questions put in cross examination suggesting that the appellant was a "compulsive liar" and a "liar".
Ground 1 - Direction on onus and standard of proof 8 His Honour gave quite a short Summing-Up to the jury. In some trials this may be a virtue. However, its brevity in this trial may have contributed to error. Early in the Summing-Up, his Honour gave the jury perfectly usual and conventional directions on the onus of proof and standard of proof. No complaint is made about them, nor could it. 9 In dealing with the element in the offence of 'possession' his Honour touched on the need for knowledge by the accused. His Honour said: The question is, therefore, was the accused carrying the bag at that relevant time and at the time did he know that the bag contained, or was likely to contain the prohibited drugs. Once you are satisfied that the accused did carry the bag from the room, did he do so knowing that the bag contained a significant amount of prohibited drugs, or was aware that there was a significant or real chance that it did. And the Crown has the onus of satisfying you that he knew or was aware. 10 A little later his Honour turned to the case for the accused. He directed the jury as follows: The accused has presented an explanation. Now you must consider whether his innocent explanation that he was asked by someone to meet some strangers and take them somewhere around Sydney is a reasonable explanation. Of course you would have noted that the arrangement for him to get them had to have only happened after the injury (sic). How he was set up that morning. It is noted that in an earlier statement to police he said he had been asked the day before to meet them at the Furama Hotel, but this was before the Furama Hotel became the venue, and before they had arrived in the country. But in his later statement and in his sworn evidence he has presented the explanation that he was merely helping two strangers to meet some other people. With respect to the accused's explanation, you only have to consider whether it is a reasonable explanation in the circumstances. The accused does now admit that at time of his arrest in the first interview he did lie about some things, mainly how and why he had gone to the hotel. You must weigh all these things up. You have seen him in the witness box and you have the two records of interview of the police. 11 His Honour then immediately turned to the issue of the appellant's character and said to the jury: This does raise a matter of character. It is character first of accused has been raised in the case. He has stated that he is a person of good character. The Crown in some of its questions has suggested otherwise. This is a difficult matter to consider but you as members of the community who see persons acting in different ways around you in ordinary life can assess this. There is no evidence to show that the accused has been a person of bad character. Yes he agrees he told lies to the police at first. This must all be balanced as to credibility you must assess that from what he said in the witness box. But even if you find he is not a person of the best of character from some things he has admitted that still does not make him guilty of this offence. 12 It is this direction which is the subject of ground 2 of the appeal. 13 The trial judge then gave the following direction to the jury, which counsel for the appellant, Mr Boulten, describes as containing a fundamental and dramatic error. His Honour said: We must be very wary of the risk of the entrapment of an innocent man. So is there a chance that the police accidentally got the wrong person. So could it be that he did come innocently to assist to (sic) two apparent strangers who appeared to come into the country the previous night with a large quantity of prohibited drugs. At the end of all your analysis of the evidence, is the only reasonable or credible explanation the guilt of the accused, namely he had the drugs when he walked out of the room and he knew he had them. Or could there be another explanation. Is there a reasonable chance on the balance of probabilities that what the accused said in his record of interview that he was merely coming to the Furama Hotel to take the people there out to see the town or to meet other people. Because if so then you must have a reasonable doubt and the accused must be acquitted. 14 The Summing-Up concluded shortly thereafter. It appears that no complaint was made by either counsel to his Honour about any aspect of the Summing-Up. The appeal books do not contain a transcript of what transpired immediately after the jury retired. However, appellant's counsel accepts that no objection was taken to any portion of the Summing-Up, nor were any additional directions sought. 15 The Crown concedes that if the appellant is successful on this ground, it cannot raise a Rule 4 argument against him. 16 It should be recorded that both the Crown and the accused were represented by different counsel at the trial than on the appeal. 17 It seems to me that what his Honour said, quoted above in para 13, ran a real risk of reversing the onus of proof. His Honour told the jury that they might form a reasonable doubt if 'there is a reasonable chance on the balance of probabilities that what the accused said in his record of interview' (my emphasis), was true. This would mean that the jury might understand that they could find the appellant guilty on the basis that they were not satisfied on the balance of probabilities that his version of events was true. 18 But this is not the law. A reasonable doubt can be left even where the accused gives no explanation for his conduct. A jury may reject, in whole or part, evidence led by the defence and still be left with a reasonable doubt. A jury may be left with a reasonable doubt even where an accused does not give an explanation for his conduct. 19 It is the submission of counsel for the appellant that the direction was fundamentally flawed and constituted a departure from the essential requirements of a fair trial. It is contended that the error went to the root of the trial so that it can be said that the appellant did not have a proper trial, R v Wilde (1998) 164 CLR 365 and Mraz v The Queen (1955) 93 CLR 493 at 514. 20 The Crown's response to this powerful submission is that the phrase 'balance of probabilities' was not used by his Honour in any technical sense but rather in the context of directing the jury to consider the explanation proffered by the appellant, and in the context of reminding the jury that the onus was on the Crown to prove the offence beyond reasonable doubt. 21 I do not accept this submission. The defence of the accused depended on whether the jury believed him or not. But what his Honour said ran a real risk that the jury would reverse the onus of proof. His Honour did not speak in terms of 'reasonable possibility' with regard to the version of the appellant. 22 Not only was the direction liable to confuse and mislead the jury as to the proper onus and standard of proof, it had the effect of restricting the jury in considering reasonable doubt in relation to the prosecution evidence. It may also be observed that his Honour's direction, the subject of the criticism, was virtually the last advice he gave to the jury before they retired. 23 In my view, his Honour committed a fundamental error when he so directed the jury. The direction which he gave went to the very root of the trial. It follows that there was a miscarriage of justice which entitles the appellant to have the conviction quashed and a new trial ordered.
Ground 2: Failure to direct on character 24 Although the appeal is decided favourably to the appellant on Ground 1, it is necessary to briefly address the remaining grounds of appeal. This is particularly so bearing in mind what was said by the High Court in The Queen v Chai [2002] HCA12 on 14 March 2002, see para [3]. 25 It is submitted on behalf of the appellant that his Honour failed to direct the jury on the manner in which they should deal with the evidence of the appellant's good character. 26 In the Summing-Up the trial judge referred to the fact that the appellant had admitted that he told lies to the police in his first interview. His Honour then said: This does raise a matter of character. It is character first of accused has been raised in the case. He has stated that he is a person of good character. The Crown in some of its questions has suggested otherwise. This is a difficult matter to consider but you as members of the community who see persons acting in different ways around you in ordinary life can assess this. There is no evidence to show that the accused has been a person of bad character. Yes he agrees he told lies to the police at first. This must all be balanced as to credibility you must assess that from what he said in the witness box. But even if you find he is not a person of the best of character from some things he has admitted that still does not make him guilty of this offence. [AB 353 .4 to .8] 27 Counsel for the appellant submits that the fact that the appellant had no prior criminal convictions had probative value in two respects. It was relevant to the appellant's credibility when he gave evidence. It was also a factor affecting the likelihood of the appellant having committed the offence. He argues that the jury should have been directed that the appellant's evidence of good character needed to be considered in relation to the appellant's propensity to commit the offence and to his credibility. His Honour's direction failed to direct on either basis. 28 The submission has validity. His Honour did not give the required direction on the appellant's character. The Crown responds by saying that it was not sought. That is so, but it seems to me that since the appellant had called evidence of good character, the trial judge should have given the necessary direction on both limbs, or at least have raised the matter with counsel before deciding what to say to the jury on character. 29 The failure to give the direction was important because it could have had some affect on the jury. Again, the appellant succeeds on this ground of appeal.
Ground 3: Cross-examination of accused without leave 30 The appellant was cross-examined by the Crown Prosecutor about his sleeping arrangements with prostitutes and about not having paid income tax. The Crown accepts that leave was required to be sought to so question the appellant but that leave was not so sought (s 112 Evidence Act). 31 The cross-examination of the appellant about his sleeping arrangements in the flat where he lived was clearly an endeavour to determine if the appellant slept in the same bed as a prostitute. The appellant himself objected to answering a question relating to the employment or occupation of his flat-mates, although his counsel did not object. The judge made no ruling and the appellant was required to answer the series of questions. 32 The appellant was then asked, 'Have you ever paid tax'? The question was objected to by the appellant's counsel but allowed by his Honour. The appellant answered 'No'. 33 It was irrelevant whether the appellant did not pay tax or lived with prostitutes. The evidence was prejudicial to the appellant. If leave had been sought to so cross-examine, it could have been rejected under s 137 of the Evidence Act as its probative value was clearly outweighed by the danger of prejudice to the appellant. If leave had been sought to cross-examine, his Honour would have had to consider the discretion in s 192(2) of the Evidence Act, in particular sub sections (b), (c) and (d). See R v Stanoevski (2001) 202 CLR 115. 34 Counsel for the respondent submits that the appellant suffered no great prejudice by reason of what was asked of him without leave. Accordingly, it is submitted that there was no miscarriage of justice. However, the appellant's credibility was central to the jury's deliberations. In combination with ground 2, relating to his Honour's failure to properly direct the jury on the character of the accused, it raises a prejudice in the appellant which may amount to a miscarriage of justice. It should be recalled that in his Honour's direction on character the judge said: He [the appellant] has stated that he is a person of good character. The Crown in some of its questions has suggested otherwise. [My emphasis added]
Ground 4: Offensive cross-examination of accused 35 In his cross-examination of the accused the Crown Prosecutor repeatedly attacked him as a 'liar'. Sometimes this was with specification but, on occasions, was not. An example of the latter is the question 'You are a liar aren't you? Another of the prosecutor's questions was: You see, you are a compulsive liar, aren't you, Mr Sanchez? 36 It is the submission on behalf of the appellant that the repeated questions were offensive and should have been disallowed pursuant to s 41 of the Evidence Act. 37 While not endorsing the style and repetition of questioning of the accused by the prosecutor, two matters may be noted. First, because the appellant had admitted that he had told the police untruths in his first interview, the prosecutor was entitled to cross-examine the appellant on his interviews with a view to seek to establish that his answers in the interviews were lies or that particular answers in his evidence were lies. Secondly, no objection was made by counsel for the appellant to any of the questions suggesting that the accused was a liar. 38 It seems to me that in considering this ground on its own that rule 4 of the Criminal Appeal Rules should be applied and leave to argue this ground should be refused.
Conclusion 39 The appeal should be allowed and the conviction of the appellant quashed and a new trial ordered. It is, accordingly, unnecessary to consider the appeal against sentence. 40 SULLY J: I agree with Stein JA. 41 SMART AJ: The facts and circumstances are set out in the judgment of Stein JA. There were two issues in the trial, namely, whether the appellant carried the suitcase and thus had possession of the drugs and whether he knew (or believed) that he was carrying drugs. I agree with what Stein JA has written as to grounds 1, 2 and 3. 42 As to ground 4, I regard the particular cross-examination in which counsel for the Crown engaged as impermissible. The fifth question was "You are a liar, aren't you?" This was more an assertion than a question. That 'question' was general and not related to any subject matter. The refrain in some of the cross-examination was that just as the appellant had lied to the police (which the appellant admitted) he was lying to the court. There was also the question (or assertion) "You see, you are a compulsive liar, aren't you, Mr Sanchez?" There were questions (or assertions) such as "I suggest you are lying again Mr Sanchez." Most of this occurred early in the cross-examination and had the effect of setting the stage. It went too far. Thereafter there was a detailed cross-examination as to the various events which had occurred. The cross-examination concluded with this assertion, "And I suggest you are lying to ... the jury as you have lied in your records of interview." That was an unfair question. Such a comparison is inapt. 43 The appellant gave his evidence through an interpreter and at some times appeared to experience some difficulty. The effect of some of the cross-examination was to stir up illicit prejudice. 44 Counsel appearing for the appellant at the trial did not object to the impermissible questions. The Crown was entitled to cross-examine the appellant as to the lies he had told the police. Counsel for the appellant made no application to the trial judge It is important that these matters be dealt with at the trial. However once questions of the kind mentioned are asked some prejudice is created even though it is the answers which are important at law.
45 I regard impermissible Crown cross-examination as a serious matter with its capacity to create illicit prejudice against an accused. I would reject the r.4 point and also allow the appeal on ground 4.
The Crown case was a strong one and it is a matter of regret that there has to be a new trial but the proviso cannot be applied because of the fundamental departures from the requirements of a fair trial according to law. I agree with the orders proposed by Stein JA.
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R
Soto-Sanchez
Appeal allowed; conviction quashed; new trial ordered. The appeal against sentence was not considered: [39].