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Court of Criminal Appeal 10 May 2002

R v Soto-Sanchez

[2002] NSWCCA 160

Also reported as (2002) 129 A Crim R 279
Drugs
CRIMINAL LAW POSSESSION OF PROHIBITED IMPORTS CUSTOMS ACT 1901, S 233B APPEAL AGAINST CONVICTION LEAVE TO APPEAL AGAINST SENTENCE WHETHER TRIAL MISCARRIED

Citation: Soto-Sanchez v R [2002] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 10 May 2002
Judge(s): Stein JA; Sully J; Smart AJ

Background

The appellant was a Colombian national living in Sydney who was convicted by a jury in the District Court of possessing prohibited imports under s 233B of the Customs Act 1901. The charge related to over 12 kilograms of cocaine concealed in video camera battery belts, which had been brought to Sydney by two Spanish nationals and delivered to a hotel room under a controlled operation by the Australian Federal Police.

The Crown's case was that the appellant attended the hotel room on multiple occasions, ultimately carrying a suitcase containing the cocaine battery packs when he was arrested near the hotel elevators. At the time of his arrest, he was found with cash and a piece of paper bearing the hotel's address. His response to police questions was "I don't know anything."

The appellant gave evidence at trial through an interpreter. He claimed he had gone to the hotel innocently at the request of his cousin and was unaware the suitcase contained drugs. He was sentenced to 24 years' imprisonment with an 18-year non-parole period. He appealed both conviction and sentence.

  • Whether the trial judge's directions on the onus and standard of proof were legally adequate
  • Whether the trial judge erred by failing to direct the jury on how to use the evidence of the appellant's good character
  • Whether the Crown cross-examined the appellant on impermissible topics (sharing premises with prostitutes, not paying tax) without first obtaining leave from the trial judge
  • Whether Crown counsel's repeated assertions during cross-examination that the appellant was a "liar" and a "compulsive liar" constituted impermissible and prejudicial questioning

Decision

On the first ground, the Court found that the trial judge's summing-up was brief to a fault. While the judge initially gave orthodox directions on onus and standard of proof, other passages in the directions were apt to confuse or undermine those directions, such that the jury may not have properly understood the legal standard required for conviction.

On the second ground, the Court held that the trial judge gave no adequate direction on good character evidence, despite the appellant having adduced such evidence. A proper direction would have told the jury that good character was relevant both to the appellant's credibility as a witness and to the likelihood of his having committed the offence.

On the third ground, the Court found that Crown counsel cross-examined the appellant on sensitive matters, including sharing premises with prostitutes and failing to pay tax, without obtaining the leave required before asking such questions of an accused. This was a procedural irregularity that contributed to unfairness at trial.

On the fourth ground, both Stein JA and Smart AJ regarded the Crown's cross-examination as going impermissibly far. Questions or assertions such as "You are a liar, aren't you?" and "You are a compulsive liar, aren't you, Mr Sanchez?" were not properly directed at specific prior inconsistencies but amounted to broad character attacks. Smart AJ observed that the appellant gave evidence through an interpreter and at times appeared to struggle, and that this style of questioning had the capacity to stir up illicit prejudice. Although defence counsel at trial had not objected, the Court held that the prejudice created by such questions could not be cured by the proviso. The Crown case was described as strong, but the Court concluded the fundamental departures from the requirements of a fair trial meant a new trial was unavoidable.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • A trial judge's summing-up on onus and standard of proof must be consistent throughout: even where an initial direction is orthodox, subsequent passages that undermine or confuse that direction can constitute a misdirection sufficient to vitiate a conviction.
  • Where an accused leads evidence of good character, the trial judge must direct the jury that such evidence is relevant both to the accused's credibility as a witness and to the probability of the accused having committed the offence charged.
  • Cross-examination of an accused on sensitive or prejudicial topics requires leave under the Evidence Act; proceeding without leave is an irregularity that can contribute to a miscarriage of trial.
  • Broad assertions during cross-examination that an accused is a "liar" or "compulsive liar", not tied to specific prior inconsistencies, carry the risk of creating illicit prejudice and may render a trial unfair, even where the Crown's underlying case is strong.
  • The Court of Criminal Appeal confirmed that the proviso (permitting a court to dismiss an appeal despite a legal error, where no substantial miscarriage of justice has occurred) cannot be applied where there have been fundamental departures from the requirements of a fair trial according to law.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Evidence Act 1995 (NSW), ss 41, 112, 137, 192
- Criminal Appeal Rules, r 4

Cases:
- Mraz v The Queen (1955) 93 CLR 493
- The Queen v Chai [2002] HCA 12
- R v Stanoevski (2001) 202 CLR 115
- R v Wilde (1998) 164 CLR 365 [Note: the reported citation in the judgment appears to read 164 CLR 365 but this may warrant verification against the original text]