Okafor v R - [2007] NSWCCA 147

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Okafor v R [2007] NSWCCA 147

FILE NUMBER(S):
2006/2566

HEARING DATE(S): 12/04/2007

JUDGMENT DATE: 30 May 2007

PARTIES:
Emmanuel Nnamdi Okafor v Regina

JUDGMENT OF: McClellan CJ at CL Howie J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2005/11/0541

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 24/02/2006

COUNSEL:
I. Bourke - Crown
Self - Appellant

SOLICITORS:
Commonwealth DPP - Crown
Self - Appellant

CATCHWORDS:
Criminal Law - Appeal - whether verdict unreasonable - Investigation - whether listening device warrant invalid as a general warrant.

LEGISLATION CITED:
Customs Act
Evidence Act

CASES CITED:
Warner v Elder (NSWSC, unreported, 23 April 1997)
MacGibbon v Warner (1997) 98 A Crim R 450

DECISION:
The appeal against conviction is dismissed. Leave to appeal against sentence is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2566
McCLELLAN CJ at CL
HOWIE J
HALL J
WEDNESDAY 30 May 2007

Emmanuel Nnamdi OKAFOR v REGINA

Judgment

McCLELLAN CJ AT CL: I agree with Howie J.
HOWIE J: The appellant, who is unrepresented before this Court, was convicted after trial by jury of an offence that on or about 22 March 2005 he attempted to possess goods that had been imported into Australia in contravention of the Customs Act being narcotic goods consisting of a quantity of heroin of not less than the trafficable quantity for that drug. The trial was conducted before Judge Ainslie-Wallace (the Judge) and the appellant was represented by counsel. As a consequence of his conviction the appellant was sentenced to imprisonment for six years with a non-parole period of four years. The appellant is eligible for release to parole on 21 March 2009.
The form of Notice of Appeal completed by the appellant indicates that he is appealing against both his conviction and sentence. The grounds of appeal filed and the written submissions he has placed before the Court refer mainly to his conviction. In effect the appellant contends that the conviction was unreasonable in light of a number of matters that he has raised as grounds of appeal. They are as follows:
1.The police warrant for interception of telecommunications the Crown used against me which was an intercepted public telephone call has nothing to do with me, it has to do with another Nigerian male who lives in the vicinity of the public telephone area.
2.My name is never mentioned in the conversation and the police did not use visual surveillance evidence or direct voice identification evidence that would connect me to the call.
3.I was not in possession of drug or any documentation relating to the relevant post box and EMS postal tracking results or mobile phone registration.
4.The search of my house residence did not locate any paraphernalia associated with drug trafficking or supply and there is no evidence that I have the capacity to distribute drugs.
There is one further ground that presumably relates to his sentence being:
5.I had no criminal record or previous conviction and was relatively youthful (20 years old) at the time.
The Crown case was that on 28 January 2005 Australian Federal Police lawfully intercepted telephone calls made from a public telephone at Wolli Creek in Sydney. The target of the warrant permitting the interception of the calls was a Nigerian man but not the appellant. The calls were made in a language spoken in Nigeria. The caller, who identified himself as Obasanjo, spoke with a person overseas, identified as Acho, who told him that the place they were using was India and not Brazil and that he would "feed" Obasanjo. Obasanjo gave him an e-mail address so that he could send him the "number" and they both could "monitor its movement on the machine". The e mail address was “[email protected]”
In another call on that day Obasanjo gave the other speaker, identified as Fedamatic, a telephone number. That service was registered in the name of James Morrisey of 15 John Street, Ashfield. Subsequent inquiries found that no person by that name lived at that address
The Tempe Newsagency was run by Mr and Mrs Colman. As part of the business they operated a number of private mailboxes that were located outside the newsagency on the street. Mail was delivered to the newsagency and received by the Colmans who placed it into the appropriate mailbox. If a package was too large to fit into a mailbox, it was held behind the counter and a notification put into the mailbox.
On 14 February 2005 Mrs Colman had a conversation with a person who indicated that he wished to renew Box 13. Mrs Colman received money from him and renewed the rental. The transaction was captured on a security camera that recorded visual images but not sound.
One 22nd March 2005 a parcel was delivered to the newsagency addressed to Joe Michael 13/727 Princes Highway. The parcel had been sent by Express Mail Service (“EMS”) from India. Australia Post operated a website where items sent by EMS could be tracked by reference to an "item number". Mrs Colman took delivery of the parcel and put it beneath the counter. She later contacted the Australian Federal Police.
Shortly thereafter the appellant, who Mrs Colman said was the same man who had renewed post box number 13 in February, came into the newsagency and said, "Box 13". Mrs Colman replied, "The police have been in and picked up this parcel". The appellant responded, ”Oh” and Mrs Colman repeated, "The police have the parcel". The appellant then said, "Oh, okay, okay, yeah" and then left the shop quickly. This transaction was also captured on the security camera. It was open to the jury to conclude that the actions of the appellant captured on the video at the time of this conversation, were suspicious.
There was no dispute at the trial that the appellant had attended the newsagency on 22nd March and asked for Box 13. It was also conceded that it was the appellant who was recorded on the videotape of the security camera for that day. It was disputed that the appellant had been the person who had renewed the rental of the box.
After the appellant left the newsagency, Mrs Colman again rang the Federal police. At about 9 a.m. Federal Agents attended the newsagency and collected the parcel. It was taken to police headquarters where it was opened and two plastic bags were found inside a book. They contained just over 197 grams of powder. The powder was later found to contain pure heroin weighing 108 grams.
Federal police then returned to the area near the newsagency and commenced surveillance. About 1.25 p.m. the appellant was stopped and spoken to. He said that he lived at unit 2/24 Clarence St, Rockdale. He was asked to show the contents of his pockets and removed two mobile phones - one a Sagem and the other a Sony Ericsson. He was asked why he had two mobile phones and the appellant shrugged his shoulders. He was allowed to walk away but was followed by police. He was seen to enter a store where he made a number of telephone calls. A short time later he was arrested.
On 20 April 2005 police showed Mrs Colman a photo board containing twelve photographs of dark-skinned males including one of the appellant. Mrs Colman marked a photograph that was not the appellant indicating that this might have been the person who came to pick up the parcel. She also told police, "They all look the same".
The two mobile phones taken from the appellant were later examined. Data obtained from the SIM card found inside the Sagem phone included the SMS text "this is my emil ad. obj25 yahoo.com”. This was the e mail address given by Obasanjo in the telephone conversation intercepted by Federal police from the public telephone at Wolli Creek.
The Sagem mobile phone was registered to “James Tan” of 5 John Street, Ashfield. The Sony Ericsson was registered to “Rick Martin” of 15 John Street, Ashfield. Neither person was known at those addresses.
The appellant declined to participate in an interview with police following his arrest and did not give evidence before the jury. Therefore there was no explanation by the appellant for his actions in going to the newsagency shortly after the parcel had been delivered and inquiring about Box 13.
In summing up the judge told the jury that the "real dispute in this matter ………is that the accused attempted to take possession of the heroin". In order to prove that matter the Crown relied upon a circumstantial case and the Judge gave the jury the usual direction that, before they could convict the accused, they must be satisfied that there was no other reasonable explanation open on the facts other than that the appellant knew that the parcel contained drugs when he attempted to obtain possession of it.
In that regard the judge said this in the summing up:
“The evidence on which the Crown relies to prove the accused's knowledge is: the contents of the telephone call of 28 January from the phone box in Wolli Creek to a person who is referred to as Acho and later to a person referred to as Fedamatic, I will come back later and discuss these with you. The Crown relies on the e-mail address found on the Sagem phone whichj was taken from the accused when he was arrested and the billing address for that Sagem phone that was taken from the accused. The Crown relies on the billing address for the Ericsson phone that was also taken from the accused when he was arrested. The Crown relies on the phone number given to Acho in the conversation on 28 January 2005 and the billing address for that phone number which was the same as the billing address for the phone found on the accused when he was arrested.
The Crown relies on the evidence of the EMS parcel tracking system about which you have heard. The Crown relies on the evidence of Mrs Colman that on 22nd March the accused came into the newsagency and said to her ‘Box 13’.
The Crown relies on the evidence of Mrs Colman that the accused came into the newsagency after the parcel had been delivered and the evidence of Mrs Colman that she had received the parcel earlier and had put it away in the newsagency until it was collected by [a Federal police officer].
The Crown relies on the behaviour of the accused as seen on the closed circuit TV. The Crown relies on the fact that the lease on Box 13 was taken out in the name of Stephen Michael using a driver's license number that did not exist and the mobile phone number given was in the name of Patrick. The Crown relies on the video footage of the man who attended the newsagency on 14 February 2005 to renew the [lease] for the box and the Crown says that it was the accused.”
In relation to the two telephone calls made from the Wolli Creek phone box the Judge said this:
“To prove that the accused is the person talking on the phone call the Crown says that there are events and activities taken by the accused after the phone call which would cause you to accept that he was the person on the phone that he was speaking first to Acho and then to Fedamatic. For example, the Crown says that the person calling from Australia was speaking Ibo, the language of the people of Nigeria. When speaking to Acho the caller gives a telephone number on which he can be contacted and that number is registered to the same address as the Ericsson phone the accused had with him when he was arrested. In the first call to Acho the caller gives an e-mail address which is the same as that found on the Sagem phone taken from the accused when he was arrested………”
The Judge directed the jury that, before they could use these phone calls as part of the Crown case against the accused, they had to be satisfied that it was the accused who made the telephone calls and that he was talking about drugs.
As to the renewal of the post box on 14 February the Judge told the jury:
“…………It is the Crown case that it was the accused who went into the newsagency on 14 February and paid for a three-month renewal of the lease of Box 13. It is disputed that it is the accused. In order to resolve the dispute you are entitled to look at the CCTV footage of 14 February. You are entitled to compare that with the CCTV footage of 22nd March. And you are entitled to compare the person who appears in the footage on 14th February with the accused, who is sitting in front of you, and you must determine whether it is the accused who came into renew the lease or not. Once again if you are satisfied that it was the accused who renewed the lease then you may use that evidence as part of the Crown case against the accused. If you are not satisfied that it was the accused then you would put that aside and you could not use that in determining whether the Crown had proved its case against the accused beyond reasonable doubt.”
The competing cases put before the jury were summarised by her Honour as follows:
“It is the Crown case that the accused arranged for drugs to be sent by post to Australia and that the path of the parcel could be tracked using the EMS posting system. The Crown case is that the accused extended the lease on the post box and did it for the parcel to be delivered.
The Crown case is that the accused knew on the morning of 22nd March that the parcel had been delivered by Australia Post and that he came to the newsagency and asked for the contents of Box 13 knowing that the parcel contained drugs and he wanted to take possession of it. It is the Crown case that he knew that it had been delivered.
Now it is the case for the accused that he knew nothing of the contents of the parcel nor did he attempt to take possession of it. The case for the accused is that his words to Mrs Colman ‘Box 13’ are merely a request for information about it and not asking her to hand over the parcel.
It was never suggested that it was the accused who took out the lease in the first place on Box 13 in which the false driver's licence was given. It was suggested to you that his behaviour, as can been seen on the closed circuit TV filmed on 22nd March is one of confusion and is consistent with being confused. It is the case for the accused that he did not make the phone call on 28 January and the defence case was that you could not be satisfied that the accused put the e-mail address on the Sagem phone because the dates were uncertain and you could not be sure that he did that.
It is the defence case that he had nothing to do with the sending of drugs from India to Australia. The defence pointed out to you when the accused was searched on the day and later when his house was searched, nothing was found that would connect him with the posting of drugs or anything to do with the parcel that was sent to Mrs Colman's post box.”
After the jury had retired to consider its verdict a note was sent from them to the judge with the following question:
“In respect of the phone transcript if there may be doubt as to the accused's being the speaker can we still consider the other linkages to the accused contained in the phone conversation and the phone found in his possession?"
The Judge answered the jury’s question the next day as follows:
“As I said to you yesterday, the evidence of the phone conversation is one of the pieces of evidence on which the Crown relies. And from which the Crown asked you to conclude beyond reasonable doubt that the accused knew that there were drugs in the parcel. If you decide that the accused is the speaker in the telephone calls then you may use the transcript of the phone conversations as part of the evidence in the Crown case and you may take into account in determining whether the Crown has proved beyond reasonable doubt that the accused knew there were drugs in the parcel.
If you decide that the accused was not the speaker in the telephone conversations then you cannot use it as part of the evidence on which the Crown relies to prove beyond reasonable doubt that the accused knew that there were drugs in the parcel.”
The appellant filed written submissions with the Court. Firstly he submitted that the Court should not use the contents of the intercepted telephone call on the 28th of January against him because it could not be satisfied as to the identity of the speaker on the Sydney end of the call for the following reasons:
“a.I was not the "target" of the interceptions, another Nigerian male living in the vicinity of the intercepted public telephone box was the intended target.
b.My name is never mentioned in the conversation.
c.The Crown did not adduce visual surveillance evidence or direct voice identification evidence connecting me to the call.
d.Clearly audible sounds of background conversations from page 5 of the transcript, together with discernible differences in pitch and lexicon in the voice attributed to “Obasanjo” founds the inference that more than one person was speaking at the Sydney end of the calls itself based on the contents of calls for example, given that background conversation is first audible at the top of page 5 of the transcript (9 min 15 sec into the recording) the possibility that a second person joined the first speaker at the phone box at that point of time is reasonably open on the evidence. There is no safe basis upon which the earlier part of the conversation could be attributed to the second speaker.
2.I would respectfully disagree with the Crown's submission that “the jury appears to have been satisfied that it was me, who arranged by telephone for the parcel to be shipped into Australia”. The note from the jury late in the trial suggesting doubts about the identity of the speakers cannot properly be used to found the submission. It was possible for the jury to convict me without needing to be satisfied that I was “Obasanjo” in the calls.
3.Second, the court could not be satisfied that the said calls relate to the prohibited imports which were subject of the charge. “Acho” tells “Obasanjo” that he will feed you one thing by next week… I will give you everything next week (p4) the package that was the subject of the charge arrived on 22 March 2005, ie almost 8 weeks after the call. The only reasonable inference in the circumstances is that the (sic) did not relate to the subject importation.
The applicant’s written submissions dealt generally with the case against him as follows:
“(a)the Crown did not allege at trial that I was (sic) attended the newsagency prior to 14 February 2005 to rent "Box 13". Indeed, evidence supports the inference that another person filled out the initial rental application card.
(b)the search of my house residence did not locate any paraphernalia associated with drug trafficking or supply. It is submitted that there is no evidence that I had the capacity to distribute the drugs.
(c)there was no evidence that I was (sic) possessed significant assets or benefited financially in some way as a result of drug-related activities.
(d)there was no allegation that I was or had recruited others into criminal activity.
(e)there is evidence of another person's involvement in relation to the heroin shipment seized by police. In particular:

Another Nigerian male living near the newsagency was the target of the said telephone interception
Evidence pointed to another person initially renting "Box 13"
It would seem that there was more than one person speaking on the phone on 28 January 2005.”

At the hearing of the appeal the applicant supplemented his submissions with another document. I have perused the document and it is to a large extent merely repetitious of matters that he already relied upon. However he does raise two matters additional to the dot points set out above as follows:

Ms Colman at a number of points in her evidence asserted that a male had attempted to collect the parcel before police arrived and seized it.
Ms Colman gave evidence that all black men appeared the same to her.

All of the points raised by the appellant were raised on his behalf before the jury. They were matters to be taken into account by the jury in determining whether the circumstances relied upon by the Crown gave rise to the only possible inference that the appellant went to the newsagency intending to collect the parcel knowing it contained drugs. The question for this Court is whether the jury were entitled to make that finding by considering all the evidence in the trial as a whole including the evidence that favoured the accused, such as his good character.
There was an application made to the Judge that she should exclude the evidence of the telephone calls obtained under the authority of the warrant. The application was based upon a submission that the warrant should have been restricted by reason of the fact that it was attached to a public phone so to limit its operation to those calls involving the target of the investigation and the person mentioned in the warrant. The Judge rejected that application indicating that she would later give reasons. There have been no formal reasons published.
At the hearing of the appeal the appellant handed up to the Court the submissions made by his counsel to the Judge in support of the argument that she should reject the evidence of the intercepted conversations. In effect the argument was that the warrant was bad on its face because it was “impermissibly broad” or “excessively wide”. The submission was that because the warrant authorised the police to intercept calls made from a public telephone box over a 90 day period, it was in effect a general warrant and this was not permissible under the relevant legislation. Reliance was placed upon a number of decisions but in particular on the judgment of Temby AJ in Warner v Elder (NSWSC, unreported, 23 April 1997) and the Court of Appeal’s decision in MacGibbon v Warner (1997) 98 A Crim R 450.
These decisions concerned a search warrant issued in respect of the Royal Commission into the NSW Police Service often known as “the Wood Royal Commission”. The facts before the Court were very different from that in the present case and the authorities relied upon were of significance for no more than a proposition that a warrant could be struck down by collateral attack upon the basis that it was a general warrant and, therefore, invalid on its face.
Although the Judge has not given formal written reasons, in admitting the conversations she stated:
“I do not propose to exclude the evidence obtained under the telephone intercept warrant. In my view it is not bad for being a generally (sic) warrant, and it is therefore valid and I will deliver reasons for that judgment later on in the trial.”
The finding made by the judge is probably the resolution of a question of law, but I am not satisfied that her Honour erred in forming that opinion on the material before her. The offence being investigated was a conspiracy to import drugs and it was open for the person authorising the warrant to come to the view that, in order to properly investigate the allegation, it was necessary for the police to be able to listen to all conversations to sift those that might be relevant to the charge whether those conversations were made by the person named in the warrant or not. The issue was not argued before this Court but I am prepared to assume in the appellant’s favour that such a warrant could be struck down on this basis. However, I do not believe that the warrant was unreasonable, or impermissibly broad or for any other reason should have been found to be invalid.
It should be noted that no other objection was raised to the admission of the telephone conversations based upon any provisions of the Evidence Act or otherwise.
There are in my view, and with respect, some unsatisfactory aspects of the summing up. I do not believe that the Judge ever answered the jury’s question or at least not in a way that might have been clearly understood by the jury. The jury wanted to know whether, if they had a doubt about the appellant being the speaker on the telephone under the sobriquet of Obasanjo, they could “still consider the other linkages to the accused contained in the phone conversation and the phone found in his possession”. This is obviously a reference to the fact that there were aspects of those mobile phones that related back to the conversations in the phone box: the reference to the e mail address and the similarity of the registered addressed for the Ericsson phone and the number used in the second conversation.
There were in my view two aspects of the question that needed to be clearly addressed. Firstly the use of the jury of the word “doubt” seems to me to suggest that they believed that they had to be satisfied of the fact that the applicant was one of the parties to the conversations beyond reasonable doubt. The jury should have been clearly told that they did not have to find that the appellant was a party to those conversations to that standard of proof. Secondly, the jury had to be plainly told, on the view that the Judge and the parties took, that, if they were not satisfied that he was a party to the conversations, the fact that he had those particular mobile phones was irrelevant. They could not make any link between the appellant and the person on the phone by reason of those particular mobile phones.
Yet the Judge merely repeated in a formalistic way what she had said earlier in the summing up, that had presumably not been fully understood by the jury. True it may be that, by examining and parsing what the Judge said with the aid of the transcript of her answer, one might by inference derive the answer to the jury’s question, but I doubt it conveyed to the jury what they wanted to know.
But of more concern is the fact that the Judge never explained to the jury in precise terms what was left of the Crown’s circumstantial case if the transcript of the telephone conversations could not be relied upon. Yet those conversations and the significance of the mobile phones found in the possession of the appellant was a very important part of the Crown case. The prosecution case would have been very substantially reduced by the omission of the transcript of the telephone calls. The case would then have been based only upon the following facts: that the applicant turned up at the newsagency to renew the lease for three months in circumstances where he was not the original lessee and the extension happened to cover the period when the parcel arrived; the fact that he arrived soon after the parcel was delivered which would show that he had received information that the parcel had arrived; his request for the parcel; and his reaction to the news that the parcel had been taken by police including his behaviour as seen on the video.
I am not to be taken to suggest that this was not sufficient evidence to prove the Crown case, but it ought to have been brought home to the jury that, if they omitted the evidence of the transcript of the telephone calls, they had to be satisfied that there was no other inference from the remaining facts other than that the appellant knew the parcel contained drugs. However, defence counsel made no complaint about the directions to the jury, which were probably overly favourable to the appellant. I doubt that the transcript of the telephone calls was inadmissible as part of the surrounding circumstances even if the appellant was not the speaker. But the Crown was prepared to conduct its case on the basis that, if the jury were not satisfied that the appellant was a party to those conversations, they should be ignored.
However, in my view it was open to the jury to find that the appellant was the speaker “Obasanjo” and that is a finding I would make. This fact was being used merely as a circumstance to prove the offence against the appellant and not as direct evidence of the offence. Therefore it did not have to be proved beyond reasonable doubt. The jury were entitled to reason backwards, as it were, to identify the appellant as the speaker in those conversations. The conversations on 28 January referred to matters that were connected to the mobile phones the appellant later had in his possession and related to drugs coming from India. He had those phones when he went to obtain a package on 22 March that contained drugs and came from India. The appellant came to pick up the parcel very shortly after it arrived indicating that he must have had information about its delivery. The first conversation referred to the means of monitoring the parcel’s progress. He had also been to the newsagency to renew the lease on the post box on 14 February. He extended the lease even though he was not the person who had taken out the lease initially. The lease was extended to a point past the delivery date of the parcel.
As has been noted the appellant never gave an account of his involvement in obtaining the parcel consistent with his innocence. This did not mean that the jury did not have to consider whether there might have been a possible innocent explanation consistent with the proved facts, but when none is proffered by an accused, it is easier for the jury to decide in favour of the Crown that no other possible explanation exists.
On the circumstances that I have set out I believe a finding that the appellant attended the newsagency in order to take possession of the package knowing it contained drugs was not unreasonable or against the weight of the evidence.
The fact that the package arrived some 8 weeks after the phone call does not seem to me to be a relevant factor. It would not matter that the calls were not in relation to the particular package delivered to the newsagency. It was the connection between a person speaking about the importation of drugs from India and the telephones in the possession of the appellant at a time when on the Crown case he went to collect a package coming from India that had drugs inside it that was the relevant circumstance.
The fact that there was nothing found in a search of the appellant’s premises to connect him with the importation or distribution of drugs was a relevant circumstance for the jury to take into account. But that fact did not necessarily displace the other circumstances indicating the appellant’s guilt. Similarly the absence of any evidence to indicate that the appellant had significant assets or the apparent profits from drug trafficking or that he was involved in some other way in criminal activity was merely part of the circumstances that had to be considered along side those relied upon by the Crown.
It was not part of the Crown case that the appellant had been the original hirer of Box 13. Nor did it have to be. There was evidence upon which the jury could find that the appellant did secure the extension of the rental of the box and they had the two videotapes to consider. But again the Crown case would not fail simply because the jury were not satisfied that it was the appellant who visited the newsagency on the date the lease was extended.
In the end the significant facts were that the appellant happened to turn up at the newsagency shortly after the package containing drugs imported from India had been delivered, asked for Box 13 from the newsagent and when arrested had mobile phones in his possession which were related to the conversations from Wolli Creek phone box which involved the importation of a substance from India. In my opinion those facts alone were sufficient to justify the jury’s verdict and proved the case against the appellant beyond reasonable doubt. In addition the jury were entitled to take into account his conduct at the newsagency including that, when he was told that the police had the package, he made no inquiry about what package was being spoken about but immediately left the newsagency.
I would dismiss the appeal against conviction.
The sentence was well within the range appropriate for the offence committed notwithstanding the applicant’s prior good character. It has often been remarked in this Court that good character is not an unusual characteristic of persons involved in drug importations. This particularly so with couriers or persons collecting drugs. It has also been stated many times that less weight can, therefore, be given to such a factor in light of the seriousness of being involved in the importation of a significant quantity of drugs at any level.
I propose that the appeal against conviction be dismissed. Leave to appeal against sentence should be granted but the appeal dismissed.
HALL J: I agree with Howie J.

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LAST UPDATED: 4 June 2007