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Court of Criminal Appeal 26 April 2012

Kho v R

[2012] NSWCCA 71

Drugs
CRIMINAL LAW APPEAL CONVICTION INCOMPETENCE OF COUNSEL ACCUSED ADMISSION OF IRRELEVANT EVIDENCE

Citation: Kho v R [2012] NSWCCA 71
Court: Court of Criminal Appeal, New South Wales
Date: 26 April 2012
Judge(s): McClellan CJ at CL, Johnson J, Grove AJ

Background

The appellant was convicted after a jury trial of supplying a large commercial quantity of heroin (approximately 14 kilograms) on 16 January 2009 in Sydney. He was sentenced to 18 years imprisonment with a non-parole period of 12 years. The prosecution's case rested on deemed supply under the Drug Misuse and Trafficking Act 1985 and alleged the appellant was part of a joint criminal enterprise with two co-offenders.

The prosecution's account placed the appellant at a Starbucks café in Haymarket, where heroin was delivered in a trolley-case by a co-offender named Tan. The appellant was observed wheeling the trolley-case to the street, hailing a taxi, and placing the case in the boot before being arrested. Plastic resealable bags and latex gloves were found in a suitcase belonging to him at his hotel room. The appellant did not give evidence at trial but had denied knowledge of the heroin in a recorded police interview.

A co-offender, Loh, pleaded guilty and was sentenced separately. At his own and the appellant's sentencing hearings, Loh gave evidence that significantly supported the appellant's account, including that he had not told the appellant about the drug transaction and that the appellant had acted innocently throughout. This evidence had not been obtained or used at the appellant's trial.

  • Whether trial counsel was incompetent in failing to investigate whether the co-offender Loh could give evidence at trial consistent with what he later said at sentencing, thereby causing a miscarriage of justice
  • Whether evidence of police surveillance of the appellant and Loh travelling from their hotel to the café was admissible
  • Whether the trial judge erred in leaving a "consciousness of guilt" direction to the jury based on an alleged lie
  • Whether fresh evidence from the co-offender Loh should be admitted on appeal
  • Whether the trial judge's interruptions of defence counsel's cross-examination amounted to a mistrial

Decision

Incompetence of counsel (the decisive ground): The court found that the central and successful ground of appeal was the incompetence of defence counsel at trial. Trial counsel had failed to enquire whether Loh was willing and able to give evidence on the appellant's behalf, despite Loh having given statements at sentencing proceedings that were materially exculpatory. The court accepted that competent counsel would have investigated this possibility and that the failure to do so constituted a miscarriage of justice. The conviction was quashed and a new trial ordered on this ground alone.

Surveillance evidence: The court considered whether evidence of police surveillance of the appellant and Loh travelling from their hotel to the café was properly admitted. Given the findings on incompetence of counsel, the court did not need to finally resolve all remaining grounds, but the surveillance question formed part of the overall picture of a compromised trial.

Judicial interventions: The court found that the trial judge had intervened significantly in defence counsel's cross-examination, and that those interventions were at times made when it would have been preferable for the jury to be absent. The court acknowledged the jury would likely have formed a negative impression of defence counsel's competence. However, the court was not persuaded the interventions themselves caused the trial to miscarry, largely because the prosecution case rested on uncontested facts from which inferences were to be drawn, rather than on evidence susceptible to effective cross-examination.

Other grounds: The remaining grounds, including the consciousness of guilt direction and the fresh evidence application, were not resolved as separate determinative matters given the outcome on the incompetence ground.

Orders Made

  • Appeal upheld
  • Conviction in the District Court quashed
  • New trial ordered

Key Takeaways

  • A failure by defence counsel to investigate whether a co-accused is willing and able to give evidence favourable to the accused can constitute incompetence of the kind that causes a miscarriage of justice sufficient to quash a conviction.
  • The Court of Criminal Appeal confirmed that the test is not merely whether counsel performed poorly, but whether the failure occasioned an actual miscarriage of justice on the facts of the case.
  • Significant judicial intervention in cross-examination does not automatically result in a mistrial; the Court of Criminal Appeal found no miscarriage from the interventions where the jury's verdict depended on inferences from uncontested facts rather than on the quality of cross-examination.
  • Where a trial judge considers it necessary to intervene regarding counsel's conduct or competence, the Court of Criminal Appeal observed that doing so in the absence of the jury is preferable to minimise prejudice to the accused.
  • Exculpatory evidence given by a co-offender at sentencing proceedings may become the foundation for a fresh evidence application or an incompetence ground on appeal if that evidence was not obtained or used at trial due to counsel's failure to enquire.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 29
- Criminal Procedure Amendment (Case Management) Act 2009 (NSW)

Cases:
- MRW v The Queen [2011] NSWCCA 260
- Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
- R v Boag (1994) 73 A Crim R 35
- R v Saleam (1989) 16 NSWLR 14
- Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124