Regina v Shalala [2002] NSWCCA 461 | Case summary

Judgment 1 DUNFORD J: I agree with Carruthers AJ. 2 SPERLING J: I also agree. 3 CARRUTHERS AJ: In view of the convoluted history of this matter it is desirable that I set out the background relevant to the proceedings which are presently before this Court. The Court is concerned here with an application by Mr Shalala that certain legal representatives, who acted for him at committal proceedings in relation to the ultimate conviction which is the subject of the appeal, be ordered to attend at the hearing of the appeal which is set down for 2 December this year. 4 On 9 May 2000 the appellant stood trial before his Honour Judge Sides QC and a jury in the District Court at Campbelltown on a charge that he: "On 7 December 1998 at Concord West in the State of New South Wales, did supply an amount of a prohibited drug, to wit, heroin, being an amount which was not less than the commercial quantity applicable to that prohibited drug." (See s25(2), s29 Drug Misuse and Trafficking Act, 1985.) 5 On 12 May 2000 the jury returned a verdict of guilty. On 8 June 2000 Judge Sides sentenced the appellant to imprisonment for seven years to commence from that day and fixed a non-parole period of five years which resulted in the appellant being eligible for release to parole on 7 June 2005. 6 The original grounds of appeal which were drafted by the appellant, who appears at all relevant times since the conviction to have been representing himself, contained one ground, namely: "1. The appellant was so incompetently represented at trial such as to cause a substantial miscarriage of justice with particular respect to the following: (i) Despite the appellant's instructions counsel failed to cross-examine the Crown witnesses in relation to (then) Detective Newton's alleged conversation constituting threats by Newton to the appellant; and (ii) counsel advised the appellant to withhold the details of this alleged conversation when giving evidence at trial: Accordingly the appellant's trial miscarried." 7 The appellant was charged on 7 December 1998 when police stopped a motor vehicle driven by the appellant in Concord Road, Concord. According to the Crown case, in the front passenger's foot well area police found a blue plastic Miller's shopping bag against the console and the front right hand corner of the passenger seat. This bag contained powder which was analysed and found to contain a percentage of pure heroin. 8 According to the Crown case, at the time of the appellant's arrest and search, the police also located two small plastic bags containing white powder in the front fob pocket of the appellant's shorts. On subsequent analysis that powder was found to contain a percentage of heroin. 9 At trial the appellant made no admissions in relation to the possession of heroin. His evidence was that he had not noticed the bags in the car. He did not allege that the police had planted the heroin in the car. The police evidence as to the finding of the powder in the appellant's shorts pockets was challenged at trial. 10 The trial followed committal proceedings in which the appellant was originally represented by Mr G.J.Goold, solicitor, and then, at the hearing, by Mr C. Steirn SC and Mr S.W. Wilkinson of junior counsel instructed by Cara and Marasco, Solicitors. 11 Subsequently, at the trial the appellant was represented by Mr C.J. Watson of counsel, instructed by Mr Stephen Sukkar. 12 On 6 November 2001 the appellant swore an affidavit in which he alleged (inter alia) that threats had been made to him by the arresting officer, Detective Newton at the time of arrest to the effect that if the appellant did not assist them in their efforts to obtain evidence against one Arthur Wan, the police would make sure that the appellant went to gaol for a very long time in relation to the alleged possession of heroin. 13 During the course of the committal proceedings it was not put to the police witnesses that these threats had been made and it was not put to the police at the trial that these threats had been made. 14 The affidavit of 6 November 2001 went on to refer to the cross-examination of the police witnesses at the committal proceedings by Mr Steirn SC to the effect that the drugs had been planted by the police. 15 The affidavit then continues with assertions that prior to the trial Mr Watson and Mr Sukkar had been provided with detailed notes from the appellant which it is alleged contained material attacking the evidence of the police. 16 Shortly stated the affidavit further alleges that although Mr Watson was instructed, according to the appellant, that the threats had been made by the police and that drugs had been planted by the police, Mr Watson indicated that the best approach at the trial was to rely upon certain difficulties in the Crown case, including proof that the appellant had exclusive possession of the drugs. 17 The appellant further contended in his affidavit that he actually instructed Mr Watson that Mr Steirn had adopted this approach at the committal and the same approach should be adopted at the trial. 18 On 23 November 2001 Mr Sukkar (who it will be recalled was instructing Mr Watson at the trial) swore an affidavit in which he deposed that he had examined the appellant's affidavit, dated 6 November 2001, and that he agreed with its contents insofar as it related to conversations with counsel in his presence. 19 This affidavit must be taken, of course, to provide, if accepted, some support for the appellant's case. Thus, in particular Mr Sukkar's affidavit states in paragraph 3: "In relation to the planting of the drugs Alec Shalala and I directed Chris Watson to attack the police's integrity regarding the planting of the smaller quantity of drugs found in Mr Shalala's fob pocket." 20 Paragraph 4 of the affidavit reads: "I have a specific memory that during Mr Watson's closing address I interrupted him with a view to addressing his mind to the planting of the drugs in Mr Shalala's fob pocket. However Mr Watson again failed to raise this aspect." 21 The appeal originally came on for hearing before this Court which was constituted by Heydon JA, Levine and Greg James JJ on 22 July 2002. The appellant applied for an adjournment which was granted, and the Court made the following orders: "(1) The hearing of the appeal listed for today is adjourned. (2) The matter is to be specially listed before the Registrar on a date to be fixed by the Registrar for the following purposes: (a) to determine the final form of the grounds of appeal. (b) to be informed by both parties of the precise issues and evidence to be dealt with on the appeal. (c) For directions as to the form of that evidence. (d) For directions in relation to further written submissions. (e) For the provision of a proper estimate of the expected length of trial. (f) The issue of summonses to any persons whom either party wishes to give evidence on the trial." 22 When the matter came before this Court on 22 July 2002 the Court also had before it another affidavit from Mr Watson sworn 16 July 2002 responding to the allegations as to his alleged refusal to follow instructions and his alleged incompetence in the conduct of the trial. Also annexed to the affidavit was a detailed ruling by the Bar Council rejecting a complaint against Mr Watson by the appellant in relation to his conduct of the trial. 23 The appeal came before Registrar Howe on 22 August 2002 consequent upon the orders made by the Court. On that occasion the appellant sought orders for attendance at the hearing of the appeal, which was set down for 2 December this year, of Mr Sukkar, Mr Goold, Mr Steirn and Mr Wilkinson. The Registrar was told that so far as Mr Wilkinson and Mr Steirn were concerned the appellant was anticipating calling them to jog their memory of the instructions which he had given them in the committal proceedings. In essence, it was put to the Registrar that support would be gained in the appeal from the fact that the appellant had instructed those representing him at the committal proceedings that it was an essential aspect of his case to attack the credibility of the police evidence. 24 The Registrar suggested that he might write to the persons concerned requesting them to supply affidavits to avoid their attendance at court and interruption to their professional lives. The Registrar wrote to the persons and letters in response were received from them. 25 Mr Steirn SC wrote to the Acting Registrar on 29 August 2002 in relation to the matter. Mr Wilkinson wrote to the Acting Registrar on 24 September 2002 and Mr Goold wrote to the Acting Registrar on 18 September 2002. Mr Goold was unable to assist because he was not retained for the committal. Mr Steirn and Mr Wilkinson said that they had no relevant recollection of the committal proceedings. 26 On 22 August 2002 fresh grounds of appeal were filed which contained no allegation of incompetence of counsel of the nature contained in the original ground 1 of the grounds of appeal. 27 However, paragraph 9 of the fresh grounds of appeal dated 22 August 2002 is in the following terms: "The appellant's counsel was so flagrantly incompetent in his representation of the appellant there has been a substantial miscarriage. In particular defence counsel, (a) failed to alert himself to the prejudice which would arise from the anticipated evidence from police, as set out in ground 1; (b) failed to take appropriate objection to such evidence (as set out in ground 1) being led in the presence of the jury; (c) failed to seek appropriate directions from the trial judge that such evidence should be disregarded by the jury in their deliberations and/or could not be used to prove the case against the appellant; (d) failed to take appropriate objection to evidence being given in the presence of the jury of an amount of money being located on the appellant, such evidence having been subject to an earlier ruling that it was inadmissible (as in ground 2); (e) failed to take early and appropriate objection in regard to the Crown's cross examination of the appellant that there had been a meeting with another person at Central and later at Burwood, prior to the appellant's arrest; (f) cross examining a detective Sykes in such a manner as to suggest, contrary to the real factual position, that there had been an operation set up to investigate the appellant (T pp 69-70). (g) failed to fully and adequately familiarise himself with the statements of police and their evidence from the committal hearing in so far as it would cast doubt on the veracity of their evidence, in particular; (i) failed to appreciate the discrepancies in the evidence of detective Sykes, Newton and Lester as to their location at the time of the purported search of the appellant's vehicle and person; (ii) failed to appreciate the inferences a jury could have drawn from the fact there was knowledge on the part of Lester prior to the purported search of the appellant that a video was available and such events could have been recorded; (iii) failed to observe the depiction of a number of receipts on the reconstructed video search of the appellant's vehicle and take into consideration its irrelevance and the likely prejudicial effect such evidence could have upon the jury; (h) failed to investigate, prior to the appellant's trial, the appellant's contention that after his being taken to Burwood station there had been an implied threat made by detective Lester and former detective Newton that if he did not co-operate insofar as an investigation of Mr Wan was concerned he would be charged with some 300 grams of heroin; (i) providing advise (sic) to the appellant that he should not lead such evidence, therefore depriving the appellant as to a motive as to why the police would have fabricated the evidence against him; (j) failed to investigate, prior to the appellant's trial, why Newton had left the police force and whether his leaving was corruption related; (k) failed to explore with police whey they informed the appellant that they would talk with him later when the appellant had, at the time of his arrest, expressed a clear intention that he did not wish to say anything; (l) failed to take objection to the admissibility of evidence obtained after the appellant indicated he did not wish to say anything; (m) failed to elicit the evidence that there was no latent fingerprints found on any of the bags or infringement notices containing heroin said to have been located in the vehicle and or on the appellant, such evidence giving rise to a question of why at least some of those items did not have the fingerprints of detective Newton who claims to have handled some of the items purportedly found prior to the alleged search being reconstructed; (n) failed to fully explore why the boot compartment lid of the motor vehicle was open and whether that compartment was searched; (o) left an improper inference with the jury that perhaps something was found in the boot of the vehicle; (p) failed to explore why Newton's official police notebook never recorded the alleged finding of any heroin in the appellant's pocket until a point in time after both the video recorder was activated (not showing such finding) and the finding of money in the appellant's pocket. 28 On 4 October 2002, the appellant filed written submissions which deal, inter alia, with ground 9. It would appear then that the matter would be ready to proceed on 2 December and the only matter outstanding was this application for orders to be made for the attendance of Messrs Watson, Goold, Wilkinson and Steirn at the hearing. 29 So far as Mr Watson is concerned, the Crown will rely upon his affidavit at the appeal and Mr Shalala has indicated that he wishes to cross-examine him. Accordingly, it will be necessary for an order to be made that Mr Watson attend. 30 Insofar as Mr Sukkar is concerned, the appellant will rely upon his evidence and the Crown has indicated that it wishes to cross-examine Mr Sukkar. Accordingly, it will be necessary to issue an order for his production. 31 That leaves Mr Steirn, Mr Goold and Mr Wilkinson. In certain oral submissions which the appellant has put before the Court this morning, he has reiterated material to which I have already made reference. He wishes to rely upon Messrs Wilkinson and Steirn in particular because he believes he can get some support, so far as his allegations against Mr Watson are concerned, from the nature of the instructions which he gave to Mr Steirn and Mr Wilkinson. 32 It is of interest to note that although the appellant claims that he instructed Mr Steirn and Mr Wilkinson to challenge the police evidence on the basis of the alleged threats by Detective Newton, we are informed by him that no such attack of that precise nature was made at the trial, although the appellant contends that he instructed Mr Watson accordingly. In his affidavit Mr Watson denies that he was given such instructions. 33 Further, the appellant has informed us that sketches were made available to Mr Steirn at the committal proceedings in relation to areas where the search and discussions took place and that Mr Steirn cross-examined police officers in relation to those sketches. A further complaint against Mr Watson is that these sketches were not relied on at the trial. 34 It seems to me that there can be no question of Mr Goold being required to attend as he has given no indication of any relevant knowledge whatsoever. As I have already indicated, both Mr Wilkinson and Mr Steirn have no recollection of the instructions which they received in relation to the committal proceedings. 35 It is important to note that the transcript of the committal proceedings has been taken out, as one would expect, and both the appellant and the Crown have copies of that transcript. Even if Mr Wilkinson and Mr Steirn had any recollection of the instructions that they received, I am quite unable to conclude that they could give any relevant evidence insofar as the allegations of professional incompetence against Mr Watson are concerned. 36 The manner in which the committal proceedings were conducted can clearly be discerned from the committal proceedings transcript and copies of the evidence that was made available and it is a question between the appellant, Mr Watson and his instructing solicitor as to what transpired between them. Nothing which Mr Steirn or Mr Wilkinson or Mr Goold could say would have any real bearing on that. 37 I would propose, therefore, that in relation to Mr Christopher Watson of counsel, that it is necessary and expedient in the interests of justice that he be ordered under the provisions of s 12 of the Criminal Appeal Act 1912 to attend before this Court on 2 December 2002 to be examined in relation to any matters in respect of which he will give evidence relevant to the appeal. 38 In respect of Mr Stephen Sukkar, who is presently in custody, I would propose that pursuant to the provisions of s 77 of the Crimes (Administration of Sentences) Act 1999 that it is necessary that he attend for the purposes of being examined before this Court on 2 December 2002. Accordingly, he is to be produced at this Court on 2 December 2002. 39 Insofar as the application for the production of Messrs Goold, Wilkinson and Steirn are concerned, I would propose that the application be dismissed. 40 One further matter remains and that is the question of the transcript, if it is available, of final addresses of counsel at the trial. Accordingly, I would propose that the Registrar direct a request to the officer in charge of the Reporting Services Branch that forthwith a copy of the final addresses by counsel, if it is available, in relation to the trial of the appellant, be taken out and provided at the earliest convenient time, to the Registrar. 41 DUNFORD J: The orders of the Court will be as indicated by Carruthers AJ. **********

Regina v Shalala

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