Citation: Regina v Ozcelik [2000] NSWCCA 495
Court: NSW Court of Criminal Appeal
Date: 27 November 2000
Judge(s): Wood CJ at CL, Dunford J, Carruthers AJ
Background
The appellant, a Turkish-born disability pensioner, was convicted after a three-day jury trial in the Sydney District Court of supply of a prohibited drug (heroin) under the Drug Misuse and Trafficking Act 1985. Police attending his Cabramatta home discovered a tin containing 12.32 grams of heroin hidden under the carpet, a large sum of cash in his wallet, and electronic scales of a type commonly used to weigh heroin.
At trial, the appellant denied any knowledge of the tin and offered explanations for both the cash and the scales. The jury convicted him and he was sentenced to 23 months imprisonment with a non-parole period of 11 months.
On appeal, the appellant challenged his conviction on the ground that his trial counsel had failed to raise evidence of good character before the jury. This omission, he argued, constituted a miscarriage of justice.
Legal Issues
- Whether trial counsel's decision not to lead good character evidence amounted to a miscarriage of justice sufficient to overturn the conviction.
- Whether the good character evidence available to the appellant met the demanding standard required to establish that the omission affected the outcome of the trial.
Decision
The Court of Criminal Appeal dismissed the appeal. Carruthers AJ, with whom Wood CJ at CL and Dunford J agreed, found that the evidence of good character available to the appellant was minimal. Three character references had been tendered at sentencing, but there was no evidence before the appellate court that the referees would have been prepared to give oral evidence at trial if called.
The court also identified a significant tactical reason why trial counsel may have chosen not to open the question of character: doing so would have exposed the appellant's two prior convictions to the jury. Those convictions included assaulting police and a mid-range PCA offence. While experienced criminal lawyers might regard these as comparatively minor, the court noted that jurors may not take the same view, particularly regarding an assault on police in a case already involving police credibility.
Carruthers AJ applied the test established in R v D (1996) 86 A Crim R 41, which sets a demanding threshold for establishing that a failure to lead good character evidence produced a miscarriage of justice. On the evidence before the court, that threshold was not met. The court noted, with some candour, that had trial counsel opened character and the appellant still been convicted, the ground of appeal might well have run in the opposite direction.
Orders Made
- The application for leave to appeal against conviction was dismissed.
Key Takeaways
- A conviction will not be set aside merely because trial counsel chose not to lead good character evidence; the appellant must satisfy a demanding test that the omission caused a miscarriage of justice.
- Where an accused has prior convictions, electing not to raise good character can be a rational tactical decision, since doing so would expose those convictions to the jury.
- The Court of Criminal Appeal confirmed that the quality and availability of the character evidence matters: references tendered at sentencing, unsupported by any indication that the authors would have testified at trial, carried little weight in establishing the required miscarriage.
- In dismissing the appeal, the court applied the standard from R v D, reinforcing that this test is not easily satisfied where the omission may have served a legitimate forensic purpose.
- No application for leave to appeal against sentence had been lodged, so the court's analysis was confined entirely to the conviction ground.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 29
Cases:
- R v Birks (1990) 19 NSWLR 677
- R v Ranko Ignjatic (1993) 68 A Crim R 333
- R v D (1996) 86 A Crim R 41
- Melbourne v R (1999) 198 CLR 1