Yi Hong PUAN v R

Yi Hong PUAN v R - [2009] NSWCCA 194 - NSWCCA 2009 case summary — Zoe

[17]

The Crown case 5 The appellant was a citizen of Singapore, and held a Singaporean passport. A ticket had been booked with Qantas Airways in the name of the appellant for a flight departing from Hong Kong on 26 September 2005 and arriving in Sydney on the following morning, 27 September. The appellant was booked to leave Australia on 7 October 2005, flying to Hong Kong from Sydney. 6 In accordance with his ticketing arrangements, the appellant arrived in Sydney on the morning of 27 September with three items of luggage. He had a black trolley suitcase, a shoulder bag and a plastic duty free bag. The duty free bag was from Hong Kong and contained two bottles that were labelled "Remy Martin Champagne Cognac" and a carton of cigarettes. Rather than cognac the two bottles contained methylamphetamine in liquid form. The total weight of the liquid was 2056.2 g containing 839.2 g of pure methylamphetamine. 7 On his incoming passenger card the appellant recorded that he had boarded the flight in Hong Kong and his purpose for visiting Australia was for a holiday. He stated that he intended to stay at the Hilton Hotel, was to remain in Australia for seven days and declared that he was not bringing into Australia any prohibited imports, such as illicit drugs. 8 Having passed the immigration check, the appellant collected his luggage and made his way to the Green Gate that applied to passengers who had no items to declare to Customs. The appellant was stopped by Customs Officer Wheeler, who inspected his documents and asked the appellant to accompany her to a baggage examination area. The appellant told the officer that the baggage with him was his, that he had packed the bags himself and that he was fully aware of the contents. 9 The officer examined the contents of the appellant's luggage including the plastic duty free bag. She asked the appellant, "Where did you purchase this?" The appellant told her that it was in Hong Kong and that he had a receipt in the duty-free bag for the items he had purchased. The officer removed, what purported to be, a receipt from the plastic bag. The receipt appeared to have been issued by a company called Sky Connection Ltd at the Hong Kong International Airport on 26 September 2005 shortly before the appellant's flight was scheduled to depart. 10 While this examination was taking place, Customs Officer Hannaford approached. He had a conversation with the appellant concerning the purpose of his trip to Australia. According to this officer, the appellant said that he had come to Australia to gamble at the Casino in order to win back money that he had lost on his previous visit. He also indicated that he might visit his cousin. Officer Hannaford asked him the name of his cousin and, according to the officer, the appellant said he didn't know his cousin's name but that he studied in Wollongong. He also told the officer that he did not know what course his cousin was studying, that he had no telephone number for his cousin, but that he planned to contact him by phoning his aunt in Singapore. 11 It was the Crown case that a third customs officer, Officer Sintonen, overheard this conversation. It was his evidence that he had spoken to the appellant on a previous visit on 2 September 2005. He had asked the appellant questions similar to those that had been asked by Officer Hannaford and had received answers that were almost identical. Officer Sintonen alerted Officer Hannaford to this fact and the latter continued to question the appellant about answers that he had given on his last visit to Australia. The appellant confirmed that he had come to Australia to gamble and said that he had with him $US1,000. 12 From copies of tickets that were attached to the appellant's luggage it was ascertained that the appellant had flown from Singapore to Bangkok on 21 September 2005 and returned to Hong Kong on 23 September 2005 before departing for Sydney on 26 September. It was the Crown case that the appellant had flown from Hong Kong to China on 23 September and returned to Hong Kong on 26 September. 13 During the examination of the appellant's luggage Officer Wheeler located a second receipt in the shoulder bag that the accused had in his possession which also had purportedly been issued by Sky Connection Ltd at the Hong Kong International Airport. This receipt was dated 23 September 2005 and related to one carton of cigarettes. It was the Crown case that the receipt found in the duty-free bag was false as it had not been issued by the company at the Hong Kong International airport on 26 September 2005. 14 Officer Hannaford opened one of the two bottles in the duty free bag and tested a sample taken from it. The tests showed the presence of a narcotic drug. As a result the appellant was further interviewed and later arrested by Australian Federal Police.

[33]

(g) Regard may be had, inter alia, to the opening address of counsel for the appellant and statements of intention during the course of the trial to determine the tactical result sought to be achieved - Seymour at [37], [39]. 29 The significant allegations here are not that counsel was incompetent by failing to object to evidence, by leading evidence to the detriment of the appellant, by failing to follow instructions generally, or in some other specific way acting contrary to the appellant's best interests. Rather the allegation is that counsel was generally incompetent in that he was lazy, unprepared, irritated the trial judge and failed to prove that Crown witnesses were lying. 30 There is one particular allegation of incompetence asserted, being that counsel failed to obtain CCTV evidence that might show that the appellant was not sweating as the Crown witnesses alleged at the time he was being questioned at the baggage examination area. There is nothing before the Court to show that such CCTV evidence existed. In any event there is no realistic possibility that any such evidence would disclose whether the appellant was sweating or not. In any event, this evidence was of minor significance to the Crown case as a whole. It did not figure in the address of either counsel or the summing up. The failure of counsel to obtain such evidence, even assuming that he did fail to do as the appellant requested of him, could not possibly have resulted in a miscarriage of justice. 31 Defence counsel was an experienced criminal lawyer who has appeared frequently over many years in the District Court. This of course does not mean that he was immune from the criticisms made of him by the appellant, but any failings were not due to inexperience or unfamiliarity with the conduct of a defence in a criminal trial before a jury. He was entitled to make strategic decisions as to how best to deal with the evidence in the Crown case and the manner in which to defend the appellant. Therefore, if he did explain to the appellant throughout the trial that he could rely upon the onus of proof in answer to some of the matters that arose on the Crown case, that advice was not necessarily wrong or inappropriate. In any event, apart from the complaint about the lack of obtaining CCTV evidence, there is no suggestion that counsel otherwise omitted to do anything that was necessary to test the Crown case or to place the appellant's case before the jury. 32 True it is that this Court does not know how counsel physically conducted himself during the course of the trial, but a perusal of the transcript does not suggest that his defence of the appellant was inadequate to the extent of being incompetent. The fact that counsel may have sat with his arms crossed and not taking notes, if it is the fact, would not result in a miscarriage of justice. Nor would the fact that he might have at times irritated the trial judge for some reason or other. There is no suggestion that, if the Judge was irritated at times with defence counsel, that it in any way resulted in unfairness to the appellant. 33 The transcript discloses that defence counsel took an active part in the trial in the protection of the appellant's interests. There were some preliminary objections taken by him before the jury were empanelled. He took objection to evidence that the Crown intended to lead of a previous trip made by the appellant to Australia in which he was in possession of two similar bottles. He also objected to the evidence of Officer Sintonen on the basis of relevance. He raised an objection to evidence being led by the Crown that the appellant appeared nervous. Counsel was successful in some of his challenges so that the Judge did not allow evidence of the appellant being in possession of two similar bottles on a prior occasion. 34 Defence counsel opened shortly to the jury after the Crown's address to indicate that the defence was a lack of knowledge of the drug in the bottles. He cross-examined Officer Hannaford and Officer Sintonen appropriately in respect of when and how their respective statements came to be made. He put allegations to them in accordance with the appellant's account of those conversations later given in the appellant's evidence. He adduced evidence to raise a question about the reliability of the witnesses based upon when and how Officer Hannaford came to make notes of the conversations he had with the appellant. He adduced evidence that the witness's statement about those conversations was made on 2 November, some six weeks after the incident. Similarly he adduced from Officer Sintonen that he had made notes of the conversation he had with the appellant on 2 September 2005 in May 2006. He also obtained evidence from that officer that he had used Officer Hannaford's statement to make his notes. 35 This was the type of cross-examination that would be expected of these witnesses and counsel was able to use the evidence he obtained to question during the course of his address the reliability of their accounts of both the conversation said to have occurred on 2 September 2005 and that which was said to have taken place on 26 September. There was nothing incompetent about the cross-examination of these two witnesses nor does the transcript reveal that in any way defence counsel failed to do what was required of him to challenge this evidence. 36 Defence counsel called the appellant to give evidence and tendered documents in his support. He addressed the jury appropriately. At the conclusion of the summing up he raised a number of matters with the judge and her Honour redirected the jury in accordance with some of the requests he made. 37 The transcript does not support the appellant's contention that there was a miscarriage of justice as a result of the manner in which he was represented by defence counsel. To the contrary defence counsel appears to have acted appropriately and to have endeavoured to ensure that the appellant received a fair trial. I would dismiss this ground of appeal.

[36]

Ground 3 Unreasonable verdict 42 The appellant contends that the verdict of the jury cannot be supported by the evidence. He made no submissions to support that assertion. 43 The ground refers to two questions asked by the jury. The first was asked on the sixth day of the trial immediately after the close of the defence case and before the Crown commenced to address the jury. The question was, "Has Mr Xerri had (sic) been located and interviewed?" 44 The background to the question was that a business card for Christopher Xerri was found in the possession of the appellant. It was Exhibit X. The card indicated that he was an "Independent Representative" for a company, ACN, and gave an address in Mount Kuring-Gai NSW. On the back of the card in handwriting was written, "Phoenician, Level 6 1603 East tower 6:30 sharp". 45 The appellant was cross-examined by the Crown about this card. The appellant denied that the writing on the back of the card was his. The appellant stated that the person was a salesman at the tackle shop in Chinatown that was a short walk from the hotel in which he stayed on his trip on 2 September 2005. He denied that the writing concerned an arrangement for him to meet someone at the Phoenician Resort in Queensland. The appellant denied that it had anything to do with the bottles he had imported. 46 There was no further evidence on the issue of the business card or Mr Xerri. The Judge, after conferring with counsel, advised the jury that there was no evidence relating to Mr Xerri and that they should not speculate "about matters that are not before you". That was clearly the appropriate answer to give the jury. The question and the answer have no relevance to any matter before this Court. 47 The second question came during the course of the summing up. The jury wished clarification of when it was that the appellant received the airline ticket that he said he had purchased from Andy the taxi driver. The Judge conferred with counsel about what answer to give and considered the transcript. Her Honour answered the jury as follows:

[37]

….It would seem that the only evidence relating to that is the accused agreed in cross-examination that the Qantas ticket was issued on 24 September 2005 and he was referring then to exhibit K, which shows the date of issue being 24 September 2005. The only other reference was that he asked Andy to get him a ticket on the earliest available flight to come to Australia and when he was speaking about getting the drinks, the bottles, he said that he received the two bottles and the receipt from Andy, in the duty free plastic bags and also cigarettes. The Crown Prosecutor said, "You received all those things from Andy?" and he said, "That's right except for my ticket. My ticket was not handed to me yet". That's the only information. [The] only evidence relating to that ticket. He doesn't actually say the date - he physically, he never was asked and he didn't give evidence either in-chief or cross-examination when he physically received the ticket that he just agreed that on 23 September obviously when he was given the bottles the ticket hadn't issued because the issue date on exhibit K is 24 September, there's nothing further that I can take you to ladies and gentlemen relating to that. 48 The appellant complains that as no answer could be given to those questions, therefore, it follows that the jury ought to have entertained a reasonable doubt about his guilt. That submission cannot be sustained. The first question was simply irrelevant and the jury were told not to speculate about the matter. The second question was simply the clarification of a point about which there was no evidence. The fact that the jury asked them simply indicates that it was taking a keen interest in the evidence. 49 There is no basis for concluding that the jury ought to have had a reasonable doubt about the appellant's guilt. This was a quintessential jury question, but having reviewed the evidence in the case I am not persuaded that there is the possibility that an innocent person was convicted. The evidence of the Custom's officers was open to some criticism as to its reliability because of the manner in which their statements were made. But this does not necessarily suggest that their evidence was concocted or should be rejected. In any event it was not necessary that their evidence be accepted for the Crown to succeed in proving the offence. 50 As in most of the cases of this type, there is considerable scepticism about the realistic possibility that the appellant was given possession of a significant amount of a prohibited drug, here with a value of about $200,000, without any steps taken by the owner of the drug to ensure that it was not accidentally consumed by the appellant or in some other way disposed of before the object of the importation, unbeknown to the appellant, was achieved. 51 I would dismiss the appeal against conviction.

[40]

During my remand that MRRC, it had come to my knowledge that at least 10 people have been charged with the same substance as me. I don't see why [defence counsel] couldn't get any reference from these cases. His submission for my sentence was a piece of work done with no effort put in. He had 2 months to prepare and yet came up with something that could easily be done in 2 hours. It was filled with mistakes. When I pointed out to him, he tried to talk his way out. Well, he is legally trained and I'm not, so I had to take his words (sic) for it. There was also the issue of the quantity of the substance that I was charged with. Despite me telling him the mistake, he never bothered to make the necessary amendments. None of the cases he had cited in the submission involves the same substance as I was charged with. 54 It is possible to have a miscarriage of justice occur by reason of incompetent representation in sentence proceedings. Where material relevant to sentence was not produced at the hearing, this Court allowed further material to be admitted as it was satisfied that the defence case was incompetently presented at the sentencing hearing: R v Abbott (1985) 17 A Crim R 355, or where relevant material had been overlooked by the carelessness of the legal representative: R v McKenna (NSWCCA, unreported, 16 October 1992). 55 But in my opinion it will be a very rare case indeed that it would be held that a miscarriage of justice has occurred simply because of a defect in submissions made to a sentencing judge by defence counsel. But even if there might be such a case, it is not the present. In fact I have difficulty in seeing any defect in the written or oral submissions made by defence counsel except, as the appellant points out, the cases referred to in the submissions concern the drug ecstasy rather than methylamphetamine. However, the Commonwealth supplied the Judge with a schedule of cases referring to the importation of methylamphetamine. In any event the appellant has not pointed to any error in the sentencing judge's remarks that might be attributed to the submissions made, or not made, by defence counsel.

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