R v Mbonu; DPP v Mbonu [2003] VSCA 52

R v Mbonu; DPP v Mbonu [2003] VSCA 52 - VSCA 2003 case summary — Zoe

[13]

The question which then arises is whether that evidence was admissible as part of the proof that the applicant was knowingly concerned in that importation. Shortly put, the answer, I consider, is - yes. Mnguni was able to call the applicant because he had written down the telephone and facsimile numbers that Uche contacted. Mnguni was endeavouring to make contact with the proposed recipient when he later called the applicant's telephone number. He had secured that number, albeit without the individual's knowledge or consent, from the person who had engaged him to deliver the drugs to this country. It was open to the jury to conclude on the basis of the applicant's own conduct that a link existed between Uche and himself. Whether or not Uche made any remark to that effect, they would also have been entitled to infer that Uche was likely to have been in communication with the person in Australia who was to take delivery of the drugs from Mnguni. Consequent upon the call made by Mnguni on 23 September 2000, the applicant met him, took possession of the bag in which the pellets of the drug were contained, briefly looked inside it, enquired as to how many "pieces" there were and put the bag down the front of his trousers. The mere fact that the applicant initially endeavoured to hide in his trousers a bag of pellets handed to him by a person who had arrived from Indonesia only a couple of days earlier suggests powerfully that he was aware of the incriminatory nature of its contents and, against this background, a party to their importation. In the monitored conversation conducted between the two men, the applicant enquired as to the number of "pieces". Mnguni responded "31 or 41". It was open to a jury to infer that this enquiry related to the number of pellets which the applicant must be taken to have seen when he looked in the bag, rather than an improbable reference to pieces of luggage as suggested in the proceeding. I note, with no surprise, that this part of Mnguni's evidence was not the subject of cross-examination in the trial. Of course, it was open to the jury to reject the applicant's explanation of the circumstances under which he came to meet Mnguni. He had been expecting the visitor to arrive and conveyed the concern of Mnguni's group who were "very worried" and had called "several times." As earlier footnoted, why this concern might have been experienced was also left unexplained.

[17]

"In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other. Thus it was said in Tripodi[14] that proof of the crime of conspiracy 'may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment'. For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred. Utterances for this purpose may be regarded as facts no less than acts and, indeed, in the United States are sometimes called verbal acts. In the example given it would be possible to reach the conclusion, admitting the evidence for the purpose described and considering it against each accused separately, not only that there was a conspiracy but also that each of the two accused was a participant.

...

However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation."

[32]

"So, accordingly, the Prosecution has to prove that the importation occurred, that the goods imported were a prohibited substance, cocaine, that the accused was knowingly concerned in the importation in the sense that I have described The Prosecution, of course, has to prove each of the elements beyond reasonable doubt and, if it fails to prove any of them, and in this case we are really concerned with the last one, then your only proper verdict would be not guilty. But, if it has satisfied you beyond reasonable doubt as to that last element, and you accept what I say to you about the other elements, then you should find him guilty."[20]

...

"Now when Mnguni gave evidence a significant part of his evidence was concerned with his time in Jakarta when he met Big Uche at the African Restaurant and agreed to become a drug courier for the payment of $5000 in United States currency and to bring the cocaine into Melbourne. Now the prosecution seeks to use that evidence of what occurred, according to Mr Mnguni, in Jakarta as part of the evidence in support of in particular count 1 on the presentment. Now there is a general rule in criminal trials that evidence of conduct of what is said by persons not within the hearing or view of the accused cannot be used against him as evidence of his complicity in a crime. However, there is an exception made where the accused is part of a conspiracy[21]. In that case things said or done by a co-conspirator can be used as evidence even though the accused was not present when those things were said or done. However, before you can use such evidence in this case you would have to be satisfied beyond reasonable doubt that the accused man, Mr Mbonu conspired with Big Uche and others in Jakarta to bring cocaine into Australia. If you are not so satisfied beyond reasonable doubt you would not be entitled to use that evidence against the accused, and in the absence of that evidence it seems to me there would be no evidence of a critical element necessary before you could find him guilty on the first count of being knowingly concerned in the importation of a prohibited import, namely the cocaine and I will deal with that in more detail when I go to the elements of the offence, but it seems to me very difficult to see how he could be guilty unless it is proved beyond reasonable doubt that the accused has an association with someone, and they do not have to be identified people, but one or more persons in Jakarta."[22]

[37]

"Now since it is the agreement which constitutes the crime[24] it is necessary in the case of the accused to ask two questions, first, whether there was an agreement between that accused and others that this particular crime should be committed, and, second, - firstly, was there such an agreement and, secondly, was the accused a party to that agreement? In order to determine whether there was a conspiracy and if so to determine its scope and purpose, you look at the proven acts, conduct and words of all the alleged conspirators. Here before you you have got Mnguni of course who has given evidence and the accused and you have also got some evidence of what occurred in Jakarta. At least someone on any view provided Mnguni with the drugs that he swallowed and brought out here and evidence, if you accept it, of some contact between a source in Indonesia and the accused, but you must be satisfied beyond reasonable doubt that there was a conspiracy of a particular scope and purpose and then look at the proven acts of the accused in this case to determine whether you are satisfied beyond reasonable doubt that he was a party to the conspiracy, one of those who agreed to a course of conduct involving a criminal offence to be pursued by one or more parties to the agreement. In order to determine these questions in this case it is necessary to consider the particular criminal course of conduct alleged to have been involved concerning the importation of the cocaine, so accordingly, the prosecution must first prove to your satisfaction beyond reasonable doubt on the whole of the evidence that there was an agreement between two or more persons involving the importation of cocaine from Indonesia into Australia and in this case I would suggest you could have no doubt that there was an illegal importation of cocaine. That has been admitted, but you still must be satisfied beyond reasonable doubt that in the case of the accused and on the evidence of his acts, conduct and words that he was one of the conspirators, one of the persons agreed to the pursuit of a course of conduct which would involve the commission of the crime, that of being knowingly involved in the importation of cocaine and of course that is the central $64.00 question in this trial."[25]

[49]

"1. It was suggested during the plea by the learned sentencing judge, that the applicant's role in the offending may have been 'relatively minimal' such that he was a 'pawn ... in the system', a 'small fish' and 'naive'. His Honour seemed prepared to conclude that a reasonable view to hold was as follows: that the applicant was one of a serious of 'cut outs, so it's very hard for the police to get up the tree to get to the real - the major offenders.' 2. Furthermore, his Honour seemed prepared to accept, as against Mnguni, that 'one could have a degree of suspicion about his activities.' 3. It was submitted that the judge ought to find that the applicant's role was less than that of Mnguni. This submission was rejected. The prosecutor did not submit that the applicant's role 'went beyond' what the judge had already indicated. 4. The judge, in sentencing the applicant, found that the applicant's involvement in the importation of the drugs was a 'significant one' and 'certainly on a level that was at least as important to that of the courier, Mnguni, whose involvement was plainly limited to that task'. Yet, his Honour felt that it was reasonable to regard the applicant's involvement 'as being of similar importance to that of the drug courier.' The judge could not discern any 'significant difference in the criminality of the offending when compared with that of Mnguni's offending.' 5. It is submitted that the judge erred by not acceding to counsel's submission that the applicant's role in the overall offending was less than that of the applicant. In the circumstances of the present case it was clear, as counsel described, that the applicant was a 'complete patsy' who was sent to see if it was at all possible to recover the cocaine by those who must have already known that the shipment had already been intercepted by the police. 6. That this was the likely turn of events is the fact that, on Mnguni's evidence, the applicant received a telephone call from Big Uche on the Friday 22 September 2000, the day prior to the applicant's arrest. According to Mnguni's evidence, it was not part of the plan that Big Uche would ever ring the applicant. On this evidence the call to the applicant was to come from Mnguni after Mnguni had contacted Big Uche."

At a glance

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Judgment (71 paragraphs)

Cases Cited (2)