REGINA v UGOCHUKWU [2003] NSWCCA 104 | Case summary

Wednesday 2 April 2003 REGINA v Ireanus UGOCHUKWU Judgment 1 SPIGELMAN CJ: The Appellant was convicted by a jury of an offence of being knowingly concerned in the importation of not less than a commercial quantity of heroin, contrary to s233B(1)(d) of the Customs Act 1901. The Appellant asserts that the trial judge erred in leaving to the jury a specific lie as evidence of consciousness of guilt. 2 The Respondent accepts that there was error. However, it relies on the proviso. That is the only live issue on the appeal. 3 To determine this issue it is necessary to understand the strength of the Crown case and of the defence case, the nature of the error conceded, and the significance of the error in the course of the trial. 4 On 8 June 2001 a package was posted from Thailand to Ms Fiaona Dickson at Motel Formule 1 at St Peters in Sydney. The package was intercepted, x-rayed, and found to contain a handbag in which there was 326 grams of heroin, later analysed to be 217.9 grams of pure heroin. The heroin was replaced by an inert substance and a controlled delivery arranged. 5 At about 9.28 am on 15 June an Australian Federal Police courier arrived at the motel and, before he entered, was approached by the Appellant, who confirmed that he was collecting a package for "Fiona Dickson". The two went into the reception area and the accused handed over a handwritten letter dated 14 June 2001, signed by "Fiona Dickson", and giving the Appellant authority to collect the package on her behalf. The Appellant left the motel and returned to his car, where he was arrested. 6 The Appellant gave evidence at the trial. He said a childhood friend of his rang him from Holland and asked him if he could help a girlfriend of his called "Fiaona". The Appellant said that "Fiaona" called him and asked him if he could find her a cheap hotel. He made inquiries and found the Formule 1. Subsequently, in the first week of June, she telephoned and asked the Appellant to book the hotel room. She said she would be staying for about two days. He advised her of the name, address and telephone number of the Formule 1 Motel. 7 The Appellant went to the motel, booked and paid for a room in the name "F. Dickson". The Appellant said that "Fiaona" called him on 12 June to say she had missed her flight and would arrive the next day. The Appellant said that on Wednesday, 13 June, he picked up Fiaona from Central Station and took her to the motel. 8 On 13 June, the Appellant said that he had asked at the motel whether a parcel had been delivered, but had done so at Ms Dickson's request. He said that he had only asked about the parcel on one occasion. He said that, at her request, he had extended her stay at the motel for one more day, paying cash. 9 The Appellant gave evidence that on Thursday, 14 June, the Appellant picked up Ms Dickson from Newtown. She told him that she had found an Australia Post delivery note on her motel door, which said she should call about the package. He said he parked his car near a public telephone. He got out and made a call. Afterwards she asked him to collect "the mail" for her the next day as she did not have the time. He said that he drove back to the motel. 10 The nature of the charge was such that the Crown had to prove knowing involvement in the importation. Possession was insufficient on its own. 11 The Crown case was a circumstantial one in which the ultimate event was the collection of the parcel. The Crown relied on the role of the Appellant in arranging the motel room and the fact that the persons associated with the motel could not identify the presence of a woman as a guest in the room booked by the Appellant. The circumstantial facts included the following: · The Appellant booked the motel room in the name of "Fiaona Dickson" for the nights of 12 and 13 June, prepaid in cash and was given a receipt; · He told the person at reception, Mrs Bonnafoux, that "Ms Dickson" was arriving from overseas the following day. · On Tuesday, 12 June, the Appellant arrived at the motel, handed over his receipt for the prepayment, and was given a code for the keypad to enter the room. · On the evidence of Mrs Bonnafoux, the Appellant made inquiries on a number of occasions over the next three days about the arrival of mail for "Ms Dickson". The Appellant admitted to having made such an inquiry on one occasion. · Mrs Bonnafoux gave evidence that at about midday on 12 June, the Appellant asked her whether any mail had arrived for "Fiona Dickson". He said he was waiting for a parcel in that name. · A short time later the Appellant contacted reception and advised he was unable to gain access to the room. She gave him a new entry access code. There was, in fact, a change in the room code that was effected by Mr Bonnafoux, after police had contacted him with a view to enquiring about Ms Fiaona Dickson's presence in the hotel. The change in the code was deliberately designed to determine who it was who would appear to gain entry to the room. Mrs Bonnafoux gave evidence she gave the Appellant the new access code on that occasion. The Appellant said he had been asked to make this inquiry by Ms Dickson, who he maintained was at that stage a guest in the hotel. · At about 1.15 pm on 13 June, an Australian Federal Police officer, posing as a courier, attempted to deliver the package to the room, but no-one answered the door. · Mrs Bonnafoux said that at about 3.30 pm the Appellant again asked her if the parcel had been delivered. When he was told that nothing had been delivered, he was seen to make a phone call on the public telephone in the reception area. He then returned to Mrs Bonnafoux and extended the occupancy of the room for another night. He paid $59 in cash and a receipt was issued to him. · At about 9.30 am on Thursday 14 June, an officer posing as a courier, again attempted to deliver the package, but, finding no-one there, left an Australia Post card with a mobile number on the card on the door of the room. · At about 5 pm on Thursday 14 June, Mrs Bonnafoux saw the Appellant enter the motel from outside. He appeared to go up the stairs leading to the rooms. About two or three minutes later, he came back down and left the motel. · Some minutes later, a female identifying herself as "Fiona Dickson" contacted the Australian Federal Police telephone number on the Australia Post card. She asked for the package to be delivered the next day and left at the motel's reception. On being told it had to be delivered to the recipient, she asked if a letter could be provided to a friend who would collect it for her. She was told that was acceptable, and arrangements were made for its delivery at 9.30 the next day. · Telephone records indicate that the telephone call was made from a public telephone situated about 500 metres from the residential premises in Dulwich Hill occupied by the Appellant and his girlfriend. Those premises were in turn located approximately four kilometres from the motel. · On 15 June at about 9.20 am the Australian Federal Police courier arrived at the motel and the Appellant approached him. He said he was waiting for a courier and that he was there to collect a package for "Fiona Dickson". The two went into the reception area. The Appellant handed over a handwritten letter dated 14 June 2001 signed by "Fiona Dickson", giving the Appellant authority to collect the package. · The Appellant left the motel and returned to his car, where, as I noted above, he was arrested. · At the time of his arrest, the Appellant had in his possession the two motel receipts and the Australia Post card that had been left on the motel door. · Later that day the police searched the premises occupied by the Appellant and his girlfriend. They located a brochure from the motel and, in a rubbish bin, found a crumpled piece of paper containing a letter dated 14 June 2001 signed "Fiona Dick .. " in substantially the same terms as the letter the Appellant had handed over to the Australian Federal Police officer on delivery of the parcel. 12 Of particular significance in the circumstantial case for the Crown, was the denial by Mr and Mrs Bonnafoux that they had seen a woman at the motel, either with the Appellant or in connection with the room he rented. Security videos had captured the Appellant on tape from time to time, always alone. 13 When the police searched the motel room, there were no items other than those belonging to the motel. Mrs Bonnafoux gave evidence that on 14 June she entered the room and the bed appeared to have been slept on, possibly on top of the cover. Mr Bonnafoux gave evidence that the bed did appear to have been slept in on that day, and that there was nothing in the room in the nature of luggage or other personal belongings. 14 On the evidence, no person by the name of "Fiaona Dickson" had entered Sydney from overseas by any authorised port between the relevant dates. 15 The strength of the circumstantial case of the Crown depended to a certain extent on the reliability of the evidence of Mr and Mrs Bonnafoux. Though their honesty as witnesses was not attacked, it was an important part of the defence case that their evidence was not reliable, particularly where it conflicted with that of the Appellant. 16 Two aspects of the evidence were subsequently relied upon as lies. The first was an unrecorded conversation with the arresting officer, Agent Morley, who asked the Appellant if he had ever been to the motel before, and, according to Agent Morley, the Appellant answered "No". The second, being the error accepted by the Crown to have been made by the trial judge, was a conversation between the Appellant and one of the cleaners at the motel, who was African. 17 According to Mr Bonnafoux, who gave evidence, the cleaner not being called, the cleaner said to the Appellant, "I'm from Burundi" and the Appellant replied, "I'm from Ghana". In fact, the Appellant was from Nigeria. The Appellant said that he did not recall the conversation with the cleaner. He denied he had told Agent Morley that he had never been to the motel before. 18 The statement about never having been to the motel before was more clearly related to the offence. No appeal has been brought with respect to the conduct of the case in this regard. The Appellant's case with respect to this allegation was that it was so unlikely for him to have said anything of that character at a time after he had handed over the two motel receipts to the arresting police, the possession of which clearly indicated that he had been at the motel on a previous occasion. This was reinforced by the obviousness of the video surveillance in the reception area of the motel, of which, it was submitted below, the Appellant could not have been unaware. 19 The appeal is based on the Crown's reliance at trial on the alleged "lie" that the Appellant came from Ghana, rather than, as was the case, from Nigeria. During the course of the Crown's address, the Crown had put to the jury that the lie about coming from Ghana was evidence of consciousness of guilt. Counsel for the Appellant applied for a discharge of the jury on the basis of both of the lies on which the Crown relied. However, the application was refused. 20 His Honour determined that, as the Crown intended to rely on the evidence of guilt, he was obliged to give a direction. This is the error that has been accepted to have been made on this appeal. His Honour gave directions, the content of which both the Appellant and the Respondent accept were appropriate to be given, if a direction was required to be given. 21 The direction first given was in the following form: "If however you are satisfied that it was a deliberate lie then you must also be satisfied that it relates to an issue which is material to the events challenged and what the Crown says to you is that in relation to the Ghana/Nigeria matter that he was trying to deflect anyone in authority from possibly identifying him by lying and saying he came from a different country. In relation to the question of whether he had been at the motel before, perhaps it is fair to say just trying to deflect attention from him by making an immediate and exculpatory statement. The second aspect, that you must be satisfied that any lies you find reveal a knowledge of the offence or some aspect of it. Now what the Crown says to you is that it was all part of a smokescreen cover-up by him, the Ghana/Nigeria thing, and that you would conclude having heard that evidence that it did reveal in him a knowledge of the offence or some aspect of it, and the same with denial that he had been to the motel. The third matter is that the lie was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence charged, or to put it another way because of a realisation of guilt and a fear of the truth, and I emphasise to you that you must be satisfied that what was in his mind was guilt to the offence charged and not other crime." 22 During the course of his Honour's summing up, counsel for the Appellant at the trial expressed his concern about "the emphasis that has been given to the question of lies". He sought redirection, but that redirection was concerned with the statement about whether or not the Appellant had been at the motel before. 23 Whilst the jury was considering its verdict, it sent a note to the trial judge which stated: "Please explain to the jury again the process of using circumstantial evidence. Please reiterate what constitutes 'beyond reasonable doubt' and how to evaluate a lie . Please note members of the jury are still having some difficulty hearing your Honour." [Emphasis added.] 24 His Honour then gave further directions to the jury about the use of lies, which, in substance, repeated the earlier direction in the following terms: "If however you are satisfied that one or other of the alleged lies was a deliberate lie, then you must also be satisfied the lie (1) relates to an issue that is relevant to the offence charged ... (2) reveals a knowledge of the offence or some aspect of it, and (3) was told because the accused knew that the truth of the matter about which he is alleged to have lied would implicate him of the offence charged or to put it another way, because of a realisation of guilt and a fear of the truth." 25 His Honour gave a further direction to the jury, no doubt in response to defence counsel's observation about the emphasis on lies, in the following terms: "I conclude by saying something additional to you that I did not say yesterday and that is that because the alleged lies were the subject of a direction to you you should not think of that evidence about them has a special quality or prominence. You consider all of the evidence in the case, which includes the alleged lies, and you do so in a balanced way. You act, as I instructed you yesterday, dispassionately and in accordance with the totality of the evidence." 26 On this appeal the Respondent accepted that the trial judge had to determine whether each of the two lies should have been left to the jury on the basis that it constituted evidence of a consciousness of guilt. The Respondent referred to R v Heyde (1990) 20 NSWLR 234; and Zoneff v The Queen (2000) 200 CLR 234. 27 In the present case it is difficult to accept that the lie about national origin relates to a material issue in the case "on the basis that the truth would implicate the accused in the offence with which he is charged". (See Edwards v The Queen (1993) 178 CLR 193 at 209). The Respondent accepts that if the trial judge had given this issue consideration, and had determined that this statement about national origin was not capable of satisfying the relevant criteria, he could have withdrawn the Crown's submission from the jury. It was on this basis that the Respondent conceded error. 28 Before the jury was a direction which combined the two alleged lies in the manner I have quoted in full above, i.e. that they were each an attempt to "deflect" attention from him by means of creating a "smokescreen cover-up". 29 The Respondent relies on the proviso and refers to the review of the relevant authorities in R v Noonan [2002] NSWCCA 150 per Beazley JA. The High Court has also recently applied the proviso in Festa v The Queen (2002) 208 CLR 593. 30 The Respondent submits that the form of direction was appropriate in the case of the lie about the motel. In the circumstances, although there was an error, the Crown submits that there was no miscarriage of justice from leaving the lie about national origin to the jury. The Respondent submitted that this was a compelling Crown case and, leaving the issue of an alleged lie about national origin to the jury was not such as could have made any difference to the outcome. 31 Mr Stratton referred to authorities, particularly R v Whittaker (1993) 68 A Crim R 476, especially at 484, indicating, "We think it fair to say that there is a diminished inclination in recent times to invoke the proviso (even in otherwise very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial". 32 Justice Callinan approved this passage in Gilbert v The Queen (2000) 201 CLR 414 at [86]. The reasoning of the High Court in Festa suggests that the diminution 'in the inclination to invoke the proviso' has seen its course. Be that as it may, Festa is of particular significance by indicating that the proviso is available, even in circumstances where there has been an error in the trial. 33 Mr Stratton submitted to the Court that there was particular significance in the present case in the sequence of events that the jury was troubled by the question of lies: it had earlier asked for the transcript of the evidence of Mr Bonnafoux, who gave evidence about a number of matters, but including the particular lie as to national origin. But, more significantly, was the jury's question which, amongst other things, sought redirection on the issue of lies. Furthermore, Mr Stratton submitted the jury deliberated on this matter for two full days, indicating that, however one categorises the Crown case, the jury did not regard it as overwhelming. 34 The strength of the Crown case lies in the fact of the possession of the parcel by the Appellant and what appears to be his total control of arrangements for delivery. The shipment had been addressed in Bangkok for delivery to a named person at a specific motel in Sydney. However, it was the Appellant who had made all relevant arrangements for the occupation of the motel room by a person of that name. He had paid the room rent, including the extension for a further day when, on his version of events, the alleged recipient was actually in occupation. He had on his own person at the time of his arrest both of the receipts for these payments, together with the notice purporting to be from Australia Post of an attempt to deliver. He had at his home a draft of the letter which purported to have been signed by the person, being a letter authorising him to accept delivery. There was no evidence which confirmed the Appellant's version that the alleged female recipient ever existed, or had at any stage occupied the motel room. Indeed, other than evidence that somebody had slept in the motel room, perhaps consistent with a person waiting for a delivery, there was no suggestion of luggage or personal belongings of any character ever having been in that room. 35 On the other hand, the issue of lies did acquire a level of prominence during the course of the case. However, his Honour gave a direction to ensure that the issue did not receive disproportionate treatment. His Honour's qualification of the second direction is of significance in putting the issue of lies into perspective in the circumstances of this trial. 36 The matter now conceded to be an error was used at the trial as an example of the Appellant seeking to cover his tracks, on the Crown case, making it more difficult to identify him in the future as the person who had organised the motel room. On the Crown case, it may well be that the most significant element of covering of tracks arose from the adoption of a female identity as the recipient of the parcel. 37 Plainly, there was a woman involved, because it was a woman who made the phone call to the purported Australia Post mobile phone to arrange the final delivery to the Appellant. Nevertheless, on the Crown case, the Appellant was also knowingly involved in the importation, not, of course, necessarily to the exclusion of other persons, including the woman who made the telephone call. 38 The applicability of the proviso in the context of a circumstantial case is affirmed by Justice McHugh in Festa, who says, after a review of the authorities, at [123]: "In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail, except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction." 39 I have set out the circumstantial factors upon which the Crown relied. Although it was a circumstantial case, those circumstances were, in my opinion, overwhelming, and inevitably pointed to the guilt of the accused. I cannot see how any juror could have placed any significance on the alleged lie that he came from Ghana, when he in fact came from Nigeria. 40 Making my own assessment of the evidence, I am satisfied that, putting aside the apparent lie complained of, the remaining evidence in the case was such that the jury, acting reasonably, would inevitably have convicted the Appellant. Notwithstanding the erroneous direction, I consider that no miscarriage of justice has actually occurred, that the appeal should be dismissed, and the conviction affirmed. 41 DUNFORD J: I agree. 42 HIDDEN J: I agree. 43 SPIGELMAN CJ: The order of the Court is the appeal is dismissed. **********

REGINA v UGOCHUKWU

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