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Court of Criminal Appeal 11 November 2003

Regina v Shalala

[2003] NSWCCA 330

Drugs
CRIMINAL LAW APPEAL NO QUESTION OF PRINCIPLE

Citation: Regina v Shalala [2003] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 11 November 2003
Judges: Handley JA, Sully J, Buddin J

Background

The appellant was convicted in the District Court of deemed supply of not less than the commercial quantity of heroin, arising from his possession of four quantities of the drug totalling 260.4 grams found in a blue plastic shopping bag in a vehicle he was driving on 7 December 1998. He was sentenced to seven years imprisonment with a non-parole period of five years. The trial was presided over by Sides DCJ.

The appellant represented himself on appeal. He had denied all knowledge of the bag and its contents at trial, and the case turned substantially on his credibility and the credibility of the police witnesses.

  • Whether evidence that police stopped the vehicle "on information received" and searched it "for weapons" was wrongly admitted
  • Whether the trial judge should have directed the jury to disregard that evidence
  • Whether evidence of the appellant's movements and possession of money contravened an earlier ruling excluding electronic surveillance evidence
  • Whether the trial judge misdirected the jury on drawing inferences from circumstantial evidence
  • Whether the trial judge failed to give an adequate direction regarding bank deposit receipts seen in video footage
  • Whether defence counsel was so flagrantly incompetent that a miscarriage of justice occurred
  • Whether the verdict was unsafe and unsatisfactory
  • Whether the sentence was excessive

Decision

Evidentiary grounds: The Court dismissed the challenge to evidence that police stopped the vehicle on "information received." Evidence of a reasonable basis for a police stop was not prejudicial, and the personal search that followed was relevant and admissible. The single use of the phrase "in this investigation concerning Mr Shalala" during cross-examination of one witness, in isolation during a four-day trial, did not cause or contribute to a miscarriage of justice.

Directions on circumstantial evidence: The appellant argued the judge should have directed the jury that each individual circumstantial fact must be proved beyond reasonable doubt before any inference of guilt could be drawn. The Court rejected this ground, confirming that the law as established in Shepherd v The Queen (1990) 170 CLR 573 is otherwise. Regarding the bank deposit receipts raised by the jury during deliberations, the Court found the judge's direction had been as favourable to the appellant as could properly have been given.

Flagrant incompetence: The appellant alleged his trial counsel failed, among other things, to adequately cross-examine a Crown witness about prior inconsistent committal evidence. The Court found that counsel had in fact cross-examined that witness about inconsistencies, and that any failure to extract the maximum advantage from a marginal witness could not constitute flagrant incompetence or a miscarriage of justice. Defence counsel had been vigilant throughout the trial in objecting to potentially prejudicial questions.

Sentence: The Court rejected the ground of excessive sentence. The judge had found special circumstances and made an appropriate allowance. The sentence fell within the established range and properly reflected the objective seriousness of the offending.

Orders Made

  • Appeal dismissed
  • Exhibits returned

Key Takeaways

  • A conviction for deemed supply of a commercial quantity of a prohibited drug may rest substantially on the jury's assessment of the defendant's credibility in denying knowledge of contraband found in a vehicle under his sole control.
  • Under the principle in Shepherd v The Queen (1990) 170 CLR 573, a jury is not required to find each individual circumstantial fact proved beyond reasonable doubt before drawing an inference of guilt; the Court of Criminal Appeal confirmed this principle applies in NSW.
  • Failing to extract maximum advantage from cross-examining a marginal Crown witness does not reach the threshold of flagrant incompetence, particularly where counsel was otherwise vigilant in protecting the accused's position at trial.
  • No miscarriage of justice arose from an isolated reference to a prior "investigation" into the accused, where the Crown did not pursue the point and the reference occurred only once during a multi-day trial.
  • Upholding the seven-year sentence, the Court confirmed it was within the established range and appropriately reflected the objective criminality of supplying a commercial quantity of heroin.

Legislation and Cases Referenced

Cases:
- R v Birks (1990) 19 NSWLR 677
- Shepherd v The Queen (1990) 170 CLR 573
- TKWJ v The Queen (2002) 76 ALJR 1579