Regina v Pulusila HOKAFONU

IN THE COURT OF CRIMINAL APPEAL 60683/00

STEIN JA O'KEEFE J BUDDIN J

Friday, 5 April 2002 Regina v Pulusila HOKAFONU Judgment 1 STEIN JA: The appellant, Pulusila Hokafonu, was convicted on 28 June 2000, following a trial before Davidson DCJ and a jury, on a charge pursuant to s 233B(1)(cb) of the Customs Act 1901 (Cth). He was found guilty of having conspired with Kevin Michael Geraghty, Peter Hardwicke and others, between 11 September 1996 and 25 November 1996 in Sydney, to import prohibited imports to Australia, namely not less than a commercial quantity of cocaine. His Honour sentenced the appellant to imprisonment for 8 ½ years from 28 June 2000 with a non-parole period of 5 years. The appellant appeals his conviction. He raises three grounds of appeal as follows:

1. The directions given by the learned trial judge pursuant to s.165 Evidence Act 1995 on the unreliability of the witness Hardwicke were inadequate.

2. The directions given by the learned trial judge in relation to the use the jury could and could not, make of the lack of explanation of documentary evidence by the appellant were inadequate.

3. The directions given by the learned trial judge in relation to the appellant's entry into a pre-existing conspiracy were inadequate. 2 At the outset it should be observed that no complaint was made to his Honour at the conclusion of the Summing-Up, nor at any other time, with respect to any of the directions set out in the grounds of appeal. Accordingly, the appellant needs leave to argue the grounds and Rule 4 of the Criminal Appeal Rules will need to be considered. 3 The facts are briefly, that the appellant allegedly entered into a conspiracy with Geraghty and Hardwicke at North Sydney to import cocaine from Los Angeles to Sydney. The agreement was that the appellant would tape packages of cocaine to his body with Hardwicke's assistance; board a flight bound for Sydney; and, while on the plane and in the air, remove the packages and place them in a rubbish receptacle. The packages were to be later retrieved from the rubbish receptacle in Sydney by one of Geraghty's associates, and 'cut and delivered'. 4 At trial the Crown case relied on the evidence of Hardwicke. He had served a sentence on an unrelated matter in the U.S. and received a discount on that sentence and an indemnity from prosecution in this matter. The defence at the trial was that it was Hardwicke who had placed the packages into the receptacle and had then fabricated a story that it was the appellant who had done so. It was suggested to Hardwicke in cross-examination that he had 'set-up' the appellant (after being thrown out of a nightclub by him) by placing articles in the appellant's luggage and noting various details upon them.

Ground 1 - Directions under s 165 Evidence Act inadequate 5 While his Honour gave extensive unreliability directions pursuant to s 165 of the Evidence Act 1995, to which no complaint was made by the appellant's trial counsel, it is the submission of Ms Bashir of counsel on the appeal that there were four deficiencies or errors in the direction. 6 First, that Hardwicke's fear of being dealt with, or further dealt with, had not necessarily been removed. 7 Secondly, that his Honour was wrong to say that Hardwicke had not received any undertaking that he would not be prosecuted because Mr Hardwicke's belief, given in his evidence, was to the contrary. 8 Thirdly, that his Honour failed to mention to the jury the significance of the benefit that Hardwicke received in the US by reason of his assistance to the US and Australian authorities, including with respect to this case. In addition, Hardwicke had a substantial and continuing incentive to assist the Australian authorities and to give evidence against the appellant, and that this was not made the subject of a warning to the jury. 9 Lastly, his Honour failed to explain the 'plea agreement' document which Hardwicke had entered into. Accordingly, his Honour's directions were inadequate. 10 From very early in the Summing-Up his Honour made it abundantly plain to the jury that the Crown case against the accused depended upon the credibility of Hardwicke. He emphasised that without Hardwicke's evidence, the Crown did not have a case against the accused. 11 A little later, when dealing with the issue of onus of proof beyond reasonable doubt residing in the Crown, his Honour explained: … in light of what I have said as to the significance of Mr Hardwick's evidence in relation to the Crown's case, you will appreciate that for the purposes of this particular trial these principles, namely that the Crown bears the onus of proof and it must prove its case beyond reasonable doubt in respect of all of the necessary matters which it must prove to establish this charge, extends to the honesty and reliability and credibility of Mr Hardwick because he is vital to the Crown's case. Unless you accept him and his evidence in relation to the essential matters which the Crown must prove to establish this charge beyond a reasonable doubt, then the Crown has failed and it would be your duty to acquit the accused. It would only be if you accepted his evidence, not in respect of every detail of what he said but in relation to the essential elements of the charge, that you would be justified in bringing in a verdict of guilty … 12 Further, his Honour's directions were frequently premised on the basis of 'if you accept the evidence of Hardwicke'. His Honour informed the jury that the Crown case, both of the alleged agreement between Geraghty and Hardwicke, and the accused's subsequent participation in it, as well as his intention to play a part in carrying the drugs, were matters which depended upon the evidence of Hardwicke. In addition, Hardwicke's evidence was strongly contested by the accused. His Honour noted that defence counsel did not go so far as to suggest that Hardwicke should not be accepted as to the existence of a conspiracy between Hardwicke and Geraghty, rather that his evidence should be rejected on the issue of the appellant ever having been a party to any such conspiracy. His Honour continued: Nevertheless it is for you to determine whether the Crown has succeeded in proving both those issues beyond reasonable doubt and it would fail if in your view it has not established either one of them. On both these issues Hardwicke is a vital witness for the Crown so that if you reject his evidence on either issue the Crown's case fails. Such is the vital importance of his evidence that it will require as I said separate directions of law from me to you in due course as to the great care and caution which you must exercise before acting on his evidence to establish firstly, that there ever was such a pre existing conspiracy to which he and Geraghty were parties and secondly and more importantly in light of the way in which it appears that this case had been presented, whether you can accept his evidence on the issue of any subsequent participation by the accused in that pre existing conspiracy. 13 His Honour added that it was very important for the jury to remember 'that perhaps the most vital issue in this case is whether you do accept Hardwicke's evidence …'. 14 Later in the Summing-Up, his Honour gave directions in law as to Hardwicke's evidence. He said: What you must be satisfied about, however, is that he is a witness whose evidence you accept beyond reasonable doubt in relation to the essential matters which the Crown must prove, more particularly you may think as to the accused's acts on which the Crown relies for the conclusion that the accused became a party to this alleged conspiracy. You will appreciate that whilst the accused bears no onus of proving anything in this case and the onus remains at all times on the Crown to establish its case, it is put to you on his behalf that after reviewing all the evidence and taking into consideration principles of law, which I am about to explain to you, on this issue you will not regard him as a witness of sufficient or indeed any reliability or credibility on the issue particularly of the accused being a party to any such conspiracy. What has been put to you, as I understand it, is that you will regard it as at least a reasonable possibility that Hardwicke was not only the negotiator and facilitator in relation to this November 1996 alleged drug deal, it was he himself who took the cocaine onto the plane and put it into the garbage chute and then sought to blame two innocent fellow passengers so as to minimise his own involvement and perhaps also to be able to do a more favourable deal for himself with prosecuting authorities both here and in the United States. If at the end of your deliberations you are of the view that that is a reasonable possibility on the evidence in the case, you will be obliged as a matter of law to acquit the accused. If on the other hand you are satisfied beyond reasonable doubt that Hardwicke is telling the truth as to his own and the accused's participation, it would be open to you to find that the Crown has proved its case and to return a verdict of guilty. 15 His Honour then said that Hardwicke's importance to the Crown case was such that without his evidence, the Crown would have no case. There would be no evidence of any pre-existing conspiracy and no evidence linking anything to the appellant. His Honour then directed the jury that Hardwicke's evidence may be unreliable and, for that reason alone, they should exercise great care and caution before acting on it. 16 His Honour turned to 'other matters relating to Hardwicke's honesty and reliability as a witness'. His Honour commented that Hardwicke was: … on his own account … a paid participant in this criminal offence charged against the accused. I warn you that for that reason alone his evidence may be unreliable. The reason for that you may think is fairly obvious. People who are themselves criminally concerned in an offence and who turn up as witnesses against another or other alleged participants in that same offence may be influenced by motives of wanting to curry favour with the authorities so as to gain as favourable as possible a result for themselves. Witnesses who fall into that category, that is to say as participants in the alleged crime who are witnesses against others said or alleged to have been participants, fall into two categories. They may themselves have been charged and dealt with through the courts or, if not, given by the appropriate prosecuting authority a formal written undertaking to the effect that he or she will not be prosecuted for any such offence as disclosed in that evidence provided at the trial of one or more of their fellow alleged criminal colleagues, they cooperate and they give truthful and complete evidence in the witness box. The effect of either of these two courses being taken, that is to say dealing firstly with that witness, charging him or her, having him brought before a court and completing the matters with which they might be charged and then calling that person as a witness or alternatively giving to that witness a formal written undertaking that he or she will not be prosecuted is this. It, at least to some extent, removes from the witness an incentive to further curry favour with the prosecuting authorities and that exaggerate or gild the lily or even lie in giving evidence so as to make the prosecution's case stronger, that it really would be or really is against an accused person, that's because the fear of being dealt with or further dealt with has been removed. He has got no incentive, she has got not incentive or motive to curry favour with the authorities, because either he or she has been dealt with according to law or have in this possession a written undertaking not to be prosecuted for any offence disclosed by their evidence in which they were a participant. At least so far as the Australian prosecuting authorities and they are the important ones because that is where Hardwicke is you may think, at least so far those prosecuting authorities are concerned, Mr Hardwicke does not fall into that category. He has not been charged, as I understand the position, with the offence which is the subject of these proceedings nor has he received any undertaking that he will not be prosecuted. At least if he has there is certainly no evidence of that before you. He has received no formal undertaking that he would not be prosecuted and that he has not been charged or dealt with in respect of any offence disclosed in his evidence so far as the evidence takes us in this case. He is not in the situation where he has had that major incentive to continue to curry favour by telling lies to strengthen the prosecution case removed. He remains in that position. All that he has received are undertakings to the effect that what he has said and will say in this and any other courtroom presumably and anything which may be discovered or obtained in consequence of that evidence will not be used against him if he is prosecuted. That does not, of course, as such provide him with protection against prosecution, also that to this extent that, as I have said, he continues to have that assumed incentive to exaggerate or even to lie of which I spoke earlier. Accordingly, I remind you again of the need for great caution in deciding whether to accept and act upon his evidence and that the weight which you give to it. 17 His Honour then turned to further matters affecting Hardwicke's credibility. These included criminal dishonesty involving credit card fraud which involved concealing his identity. Hardwicke had also admitted in evidence that he had told lies on a number of occasions in giving evidence in court relating to his involvement with drugs. He admitted making deliberately false statements. 18 His Honour added: This too I direct you is a substantial group of matters which you should take into account in deciding whether you can act on his evidence at all and if so to what extent and perhaps the most important of these matters and the most significant on this issue is his admission that he has told lies, apparently on oath, on other occasions. If he has indeed committed perjury on other occasions, then you may ask yourselves can you really accept his evidence at all in what he said to you. 19 Davidson DCJ then discussed aspects of the evidence which might serve to dispel doubts that the jury might otherwise have as to Hardwicke's honesty and reliability as a witness. 20 In summarising the case for the accused, his Honour further elaborated on the issue of Hardwicke's credibility, including the proposition that he had planted material on the appellant to save his own skin 'in so far as he could by currying favour with the authorities'. His Honour drew attention again to a number of particular aspects of Hardwicke's dishonesty, some of which he had already directed the jury on and some additional instances referred to by defence counsel. His Honour also drew attention to the 'plea bargain' in the US between Hardwicke and the authorities. 21 As I have said, his Honour was not asked to supplement his directions with respect to Mr Hardwicke, nor was it suggested that his directions pursuant to s 165 were in any way inadequate or deficient. 22 It is correct that his Honour did not expressly direct the jury on the benefit to Hardwicke in the US by virtue of his plea agreement. However, the document was in evidence and Hardwicke was cross-examined about it at length. It was also read and explained to the jury in some detail. 23 When the plea agreement was tendered, without objection, his Honour noted that the tender was limited to the words which it used and not as evidence of the facts. His Honour read to the jury various parts of the agreement which he considered to be of significance. He invited counsel to draw attention to any other parts but they did not do so. His Honour explained to the jury what the document was and said, inter alia: … but the essence of it you may think that in exchange of promise to these American law enforcement agency, the witness was to get from the law enforcement agency in the United States their assistance and co-operation in putting before the court a case which would endeavour to ensure that he would get a substantially decreased sentence than that which he would otherwise have got. That promise of co-operation extended beyond United States law enforcement authorities to the Australian Federal Police authorities so, that it requires him to cooperate, not only with the American authorities but with the Australian authorities. If he failed to do so then there is a sanction which is set out in the agreement which may befall him. Of course the object of bringing all this to your attention is that it is a factor and a very important factor as I will be pointing out to you I expect in due course, which you will take into consideration as to whether or not you are able to accept this witness's evidence in any respect. It is not the only factor but it is as I have said a substantial factor. 24 His Honour then asked counsel if there was anything further he should tell the jury, but neither counsel made any request. While his Honour indicated in the above extract from the transcript that he would return to it later, he did not do so in explicit terms, although he did make reference to it in the Summing-Up. 25 When the relevant portions of the Summing-Up are read, and reasonably read, I can not see that his Honour was telling the jury that the credibility of Hardwicke was to be seen in the light that the fear of being dealt with had been removed. In any event, in the portion of the Summing-Up, seen by the appellant's counsel as offending, his Honour referred to the removal 'to some extent' of the incentive to 'further curry favour' etc. I do not understand his Honour to be unequivocally directing the jury that the fear of being dealt with had necessarily been removed. 26 His Honour was correct to tell the jury that Hardwicke had not received any undertaking from the authorities that he would not be prosecuted and that there was no evidence of any such undertaking before them. His Honour was never asked to remind the jury of Hardwicke's evidence as to his belief as to the nature of the indemnity he had received. 27 Counsel is critical of his Honour for not mentioning the benefit Hardwicke received in the US in a reduced sentence with no parole by virtue of his assistance to the US and Australian authorities. It is submitted that the plea agreement was not the subject to any warning to the jury. 28 It is accurate to say that his Honour did not expressly instruct the jury in his Summing-Up as to the benefit to Hardwick in his US sentence and warn them about the nature of the plea agreement. However, his Honour did refer to it during the Summing-Up and he did clearly warn the jury when the agreement was tendered. 29 This warning, although not repeated in the Summing-Up, was in plain terms. No complaint was made by trial counsel for the accused at his Honour's omission in the Summing-Up to return to the agreement. By the close of the Summing-Up the jury could be in no doubt whatever that the trial was about whether they accepted the reliability and credibility of Hardwicke's evidence. The jury knew full well that the Crown case rose or fell on his evidence. They had been given extensive warnings about Hardwicke's evidence, including strong warnings in accordance with s 165. 30 It is very difficult to comprehend that even if any of the inadequacies claimed by counsel for the appellant were made out, there was any possibility of a real injustice being done to the appellant. If there be irregularity in the proceedings, the appellant needs to establish that they go to the root of the proceedings in order to be able to obtain leave to rely on a ground not taken at trial (R v Tripodina (1988) 35 A Crim R 183). I cannot see that the complaints of the appellant's counsel can be seen as going to the heart of the proceedings given the context of his Honour's Summing-Up and his explicit warnings to the jury. I am unable to appreciate how the so-called inadequacies and omissions would have had any impact on the verdict. Counsel at trial has a duty to object at trial (R v Abusafiah (1991) 24 NSWLR 531) and there must be some convincing reason shown why the matter was not raised. Here no reason is advanced. 31 In R v Stewart [2001] NSWCCA 260 a failure to comply with s 165(2)(b) of the Evidence Act was argued. However, the majority were of the view that Rule 4 should be applied because there was no possibility of a miscarriage of justice, see in particular Howie J at [163]. To test whether there was an injustice, one needs to have regard to the Summing-Up as a whole and the manner in which the trial was conducted. 32 In paragraph [168] Howie J said: I am not persuaded that the absence of a specific reference to the matter of the discount of his Honour's omission to refer to the consequences for Braddick if he failed to give evidence in accordance with his undertaking resulted in a miscarriage of justice in the present case, having regard to the length and nature of the trial and the fact that the summing up followed directly after defence counsel's address. The applicant should not be allowed to rely upon these matters in the absence of any complaint by counsel about the terms of the summing up or a request for any further directions at the trial. 33 In R v Jeffrey (Unreported, Court of Criminal Appeal, 16 December 1993) Mahoney JA discussed the importance of Rule 4 where an appellant relies on misdirections or the absence of directions to which no objection was taken at trial. His Honour said: [It] is proper to emphasise the importance of the principle embodied in R4. In my opinion, this principle plays an important part in the criminal trial process. It is important that any object to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … Errors will occur and R4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under R4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under R4. In the end, the court must exercise the power given to it by R4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which R4 performs in the criminal trial process. [p4] 34 His Honour's words are pertinent and have been applied on many occasions, including in R v DH [2000] NSWCCA 360. In my opinion, Rule 4 should be applied in this instance. No Summing-Up can be perfect, especially with the implications brought about by the Evidence Act. Nor should a 'Summing-Up' have to reach the counsel of perfection. As Mahoney JA said, defects or omissions can be cured or mitigated by being raised at the trial. We have been given no inkling as to why no attempt was made to cure the alleged deficiencies. For all we know, the failure to raise the matter may have been deliberate. Bearing in mind the comprehensive directions in the Summing-Up about the credibility and reliability of Hardwicke, counsel for the accused may well have been satisfied. Considering the Summing-Up as a whole, including many of the passages I have referred to earlier, I am unable to see that there is a possibility of a real injustice having been occasioned to the appellant, even assuming the deficiencies alleged by the appellant's counsel.

Ground 2 - directions regarding lack of explanations regarding certain evidence 35 The appellant is critical of his Honour regarding remarks that he made concerning formal admissions made by the appellant and the finding of certain items in the appellant's home. In particular, it is submitted that his Honour's comment that 'there is no explanation on the evidence before you as to how the accused came to have those documents from any source' transgressed Azzopardi v The Queen (2001) 75 ALR 349. Again, it should be noted that no complaint was made to his Honour by trial counsel. 36 I can see no such transgression of Azzopardi. The relevant portions of the Summing-Up concerned two matters. One was certain formal admissions made by counsel appearing for the appellant at the trial and the second was various documents found by the police at the appellant's premises. 37 His Honour noted that the Crown relied on 'a number of unchallenged pieces of evidence' to support Hardwicke's account of the appellant's involvement in the conspiracy. His Honour said that it was unchallenged that certain items were found by police at the appellant's home. However, he said that the appellant had challenged Mr Hardwicke as to how they came to be there and that they were being asked to accept that they had been planted by Hardwicke in an attempt to incriminate the appellant and to direct attention away from his own criminal involvement. 38 His Honour then referred to the formal admissions made by the accused. These showed that the appellant was in California at the relevant time with another man, whom he identified as Tohulo. The admissions included his staying at a hotel which had a telephone number upon which Hardwicke said he was able to contact the appellant. Also, the appellant admitted that he travelled back to Sydney with Tohulo on the same flight as Hardwicke. 39 His Honour then referred to some of the documents found by police in the appellant's home. It was in this context that his Honour made the statement about which counsel for the appellant now complains. 40 What his Honour was saying in the comment was that there was no explanation in the evidence as to how the accused came to have the documents at his home. His Honour then referred to cross-examination of Hardwicke to the effect that he had slipped them into the appellant's luggage at Los Angeles airport, which Hardwicke denied. In this context his Honour reminded the jury that there was no evidentiary value in a question. No complaint is made about this direction, nor indeed could it have been made. 41 Conventionally his Honour told the jury that an accused person never has to establish his innocence and that he was entitled to the presumption of innocence. Further, his Honour did not make any direction or any comment or remark on the failure of the appellant to give evidence. The remark complained about was not such a comment and did not transgress that which was subsequently said by the High Court in Azzopardi. 42 I have already said that the trial judge made it absolutely plain to the jury that the Crown case depended entirely on the credibility of Hardwicke. It was for the jury to determine what they thought of Hardwicke's denials in cross-examination relating to the claim that he planted the items in the appellant's luggage in order to set him up. 43 Again, this is a point which draws Rule 4 into play and it is my opinion that leave should be refused to argue the matter. There is no explanation as to why the point was not taken at the trial and it is not apparent that what his Honour said, which is the subject of the appellant's complaint, involved the possibility of a real injustice to the appellant. Ground 3 - directions concerning appellant's entry into the conspiracy 44 Counsel for the appellant submits that his Honour's explanation and directions to the jury about the entry by the accused into a pre-existing conspiracy between Geraghty and Hardwicke was inadequate. In particular, it is contended that his Honour should have directed the jury that if there was a possibility that the conspiracy, as far as it involved the appellant, took place in a place other than Sydney (as per the indictment) they must acquit. Again, it must be noted that no complaint was made to the trial judge by trial counsel. 45 I can see no substance in the submission. His Honour referred to the evidence of a meeting at North Sydney between Geraghty, Hardwicke and the appellant, at which Geraghty introduced the appellant to Hardwicke. It was open to the jury to infer from the evidence of the subsequent events in Los Angeles and the return to Sydney, that the agreement was made in Sydney and continued back to Sydney where the drugs were to be delivered and distributed. 46 Whether the jury accepted that the agreement was made in Sydney again depended on whether Hardwicke's evidence was accepted. If it was, then there was evidence that the agreement was reached in Sydney and the conspiracy continued to its ultimate object to be achieved in Sydney. 47 A reading of the Summing-Up persuades me that his Honour's instructions to the jury on this element in the offence was comprehensive and reveals no error. In any event, Rule 4 should again be applied and leave be refused to argue the matter. 48 Even assuming all or any of the appellant's submissions on his Honour's directions are correct, the appellant did not lose the chance of acquittal and the proviso applies. In the result, it is my view that the appeal should be dismissed.

49 O'KEEFE J: I agree with Stein JA 50 BUDDIN J: I agree with Stein JA.

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