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9
Court of Criminal Appeal 2 July 2009

Sanchez v R

[2009] NSWCCA 171

Also reported as (2009) 196 A Crim R 472
Drugs
CRIMINAL LAW EVIDENCE CONFESSIONS AND ADMISSIONS RIGHT OF SILENCE CRIMINAL LAW APPEAL AND NEW TRIAL

Citation: Sanchez v R [2009] NSWCCA 171
Court: New South Wales Court of Criminal Appeal
Date: 2 July 2009
Judge(s): Campbell JA; Latham J; Harrison J

Background

The appellant was convicted in the District Court of importing a commercial quantity of cocaine into Australia. He arrived at Sydney Airport in October 2006 on a flight from Argentina, carrying luggage in which approximately 2.369 kilograms of cocaine was found concealed in the lining of a laptop computer bag. He had claimed on arrival that the bag's weight was due to computer padding.

The central issue at trial was whether the appellant knew the cocaine was present, or was reckless as to its presence. He offered an explanation at trial that strangers had arranged his entire trip and provided the bags, which the trial judge found to be so implausible as to carry no real chance of persuading a jury to doubt his guilt.

The appellant's experienced trial counsel made no objection at the time to the alleged errors in the judge's directions. On appeal, the appellant sought leave under Rule 4 of the Criminal Appeal Rules to raise grounds that had not been preserved at trial.

  • Whether the trial judge's direction to the jury unlawfully permitted an adverse inference to be drawn from the appellant's silence during official questioning, thereby infringing his right of silence
  • Whether the trial judge's failure to give adequate directions on the right of silence and on section 89 of the Evidence Act 1995 (Cth) (which generally prohibits drawing adverse inferences from silence during official questioning) caused a miscarriage of justice
  • Whether any such misdirection amounted to a fundamental error going to the root of the proceedings, so as to warrant leave under Rule 4 of the Criminal Appeal Rules notwithstanding the absence of any objection at trial

Decision

Campbell JA (with whom Latham J and Harrison J agreed) acknowledged that there was an error in the trial judge's summing-up. The direction suggested the jury could draw an adverse inference from the appellant's failure to raise a defence during customs and police questioning, which conflicted with section 89 of the Evidence Act 1995 (Cth). That provision ordinarily prohibits such adverse inferences being drawn from a person's silence in the face of official questioning.

However, the Court drew a distinction between the common law right of silence and the statutory protection in section 89. The trial judge had, when the relevant evidence was first adduced during the trial, told the jury that no unfavourable inference could be drawn from the appellant's decision not to speak to police. The Court was inclined to the view that this direction was sufficient and that there was no separate obligation to repeat it in the summing-up, though the Court acknowledged some uncertainty on this point.

The Court declined to characterise the misdirection as a fundamental error going to the root of the proceedings. Applying the principles from Glennon v The Queen (1994) 179 CLR 1, a misdirection concerning the right of silence is not automatically the kind of fundamental irregularity that would justify granting leave under Rule 4 in the absence of a trial objection.

The Court was also satisfied that the case against the appellant was overwhelming. His account of how he came to carry the bags was described as "so bizarre" that no real chance existed that the jury would have accepted it as a basis for declining to draw the inferences arising from cocaine being concealed in his luggage. In those circumstances, leave under Rule 4 was refused and the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A trial judge's direction that invites the jury to draw an adverse inference from an accused's silence during official questioning can constitute a misdirection under section 89 of the Evidence Act 1995 (Cth), which ordinarily prohibits such inferences.
  • The Court of Criminal Appeal confirmed a distinction between the common law right of silence and the separate statutory protection enacted in section 89, and treated the trial direction as engaging the statutory provision.
  • Where a direction on the right of silence is given at the time the relevant evidence is adduced during trial, there may be no additional obligation to repeat that direction in the summing-up, though the Court expressed only a tentative view on this point.
  • Under Rule 4 of the Criminal Appeal Rules, leave to raise a ground of appeal not objected to at trial requires the misdirection to constitute a fundamental error going to the root of the proceedings. A direction that misstates the right of silence does not automatically meet this threshold.
  • In dismissing the appeal, the Court gave significant weight to the strength of the Crown case: where the evidence of guilt is overwhelming and the accused's explanation is wholly implausible, a misdirection on the right of silence will not necessarily result in a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (Cth), section 89
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), Rule 4

Cases
- Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
- Glennon v The Queen (1994) 179 CLR 1
- Jones v R [2005] NSWCCA 443
- Keung, Bow, Liu v The Queen [2008] NSWCCA 193
- Petty v The Queen (1991) 173 CLR 95
- Picken v The Queen [2007] NSWCCA 319
- R v Button [2002] NSWCCA 159; (2002) 54 NSWLR 455
- R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
- R v Matthews (NSWCCA, 28 May 1996, unreported)
- R v Reeves (1992) 29 NSWLR 109
- Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
- Wilde v The Queen (1988) 164 CLR 365