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Court of Criminal Appeal 14 December 2007

CAN, Vural v R

[2007] NSWCCA 346

Drugs
CRIMINAL LAW CONVICTION APPEAL CROWN'S OBLIGATION TO CALL WITNESSES ALLEGATION OF MISCARRIAGE OF JUSTICE NO MISCARRIAGE OF JUSTICE EVIDENCE

Citation: CAN, Vural v R [2007] NSWCCA 346
Court: NSW Court of Criminal Appeal
Date: 14 December 2007
Judge(s): Giles JA, Grove J, Harrison J

Background

The appellant was convicted by a jury in the District Court in May 2004 of importing a prohibited quantity of cocaine into Australia, contrary to the Customs Act 1901. Customs officers at Sydney Airport found 415 grams of cocaine concealed inside a shampoo bottle in the appellant's luggage, with a street value estimated at $120,000. The cocaine had been hidden by cutting the bottle, inserting the drug in plastic bags, and resealing it.

The Crown relied heavily on evidence from a fellow prisoner who stated the appellant had described, in detail, how he prepared the shampoo bottle and had previously taken cocaine from Colombia to Turkey. The Crown also relied on evidence that the appellant secretly disposed of receipts from Colombian pawnbrokers while in the Customs interview room, and that the Australian address he provided on his Incoming Passenger Card was false.

The appellant ran a defence that third parties had placed the cocaine in his bag without his knowledge. He pointed to a man in Turkey who had allegedly confessed to Turkish authorities, a witness who claimed to have seen the bottle switched, and other individuals said to support his account. The jury rejected that defence. The appellant filed a notice of intention to appeal in June 2004, but the formal appeal application was not lodged until May 2007, approximately three years later, requiring an extension of time.

  • Whether the Crown's failure to call certain witnesses (including the man who allegedly confessed in Turkey, and an eyewitness to the alleged bottle switch) constituted a miscarriage of justice
  • Whether evidence of the appellant's alleged disposal of the Colombian receipts, admitted as consciousness of guilt evidence, was properly admitted by the trial judge
  • Whether the appellant had provided adequate grounds and material to justify granting an extension of time to appeal

Decision

On the question of the Crown's obligation to call witnesses, the Court found no miscarriage of justice. The Crown's duty to call witnesses does not extend to investigating every potential witness or alternative theory advanced by the defence. The Court considered the Turkish witness material in detail and found that, by the time of trial, Australian Federal Police inquiries had confirmed little more than the relevant individual's apprehension overseas, leaving the evidence highly uncertain and inconclusive.

On the consciousness of guilt evidence, the Court found no error in the trial judge's decision to admit evidence that the appellant had secreted the Colombian receipts under a table in the Customs interview room. The Court was satisfied this evidence was properly received and that no reviewable error arose from its admission.

Regarding the extension of time, the appellant attributed the delay to his former lawyers' failure to lodge the appeal and to difficulties obtaining material from Turkish authorities. The Court acknowledged that such applications are assessed on the nature and extent of delay, the explanation offered, and any other relevant matters. Harrison J found the application insufficiently supported, and concluded that even if the extension were granted, the appeal would have been dismissed on its merits in any event.

Orders Made

  • The application for extension of time to appeal is refused.

Key Takeaways

  • The Crown's obligation to call witnesses does not require it to investigate every witness or alternative theory the defence raises, and a failure to do so will not automatically constitute a miscarriage of justice.
  • No error was established in the trial judge's admission of consciousness of guilt evidence, confirming that evidence of a defendant's conduct shortly after detection can be properly placed before a jury where it is relevant to that issue.
  • An application for an extension of time to appeal must be supported by adequate material addressing the nature and extent of the delay and the reasons for it; a sparse or insufficiently detailed application may be refused on that basis alone.
  • Blame attributed to former legal representatives for failing to lodge an appeal does not, without more, supply a sufficient basis to justify a three-year delay in bringing the application.
  • In refusing the extension, the Court of Criminal Appeal observed that the merits of the underlying appeal were also weak, reinforcing that both procedural and substantive considerations inform such applications.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Evidence Act 1995 (NSW)

Cases:
- Chahine v R [2006] NSWCCA 179
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
- Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
- Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
- Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
- Pollitt v The Queen [1992] HCA 35; (1991-2) 174 CLR 558
- R v Clough (1992) 28 NSWLR 396
- R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450