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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Okafor v R [2007] NSWCCA 147
Case
[2007] NSWCCA 147
Decision Date
CaseChat Overview and Summary
In the case of Okafor v R, the appellant challenged his conviction on the basis that the evidence obtained through a listening device was improperly admitted and that the trial judge’s summing up was inadequate. The dispute involved whether the warrant for the listening device was invalid as a general warrant and if the admission of the evidence was prejudicial. The appellant also argued that the trial judge failed to properly instruct the jury on certain aspects of the case, specifically regarding the use of circumstantial evidence and the significance of the mobile phones found in his possession.
The central legal issues were whether the warrant for the listening device was invalid, thus rendering the evidence obtained through it inadmissible, and whether the trial judge's summing up to the jury was sufficient. The court had to determine if the evidence obtained from the listening device was properly admitted and if the summing up was adequate in guiding the jury on the application of the evidence and the standard of proof required.
The court held that the warrant for the listening device was not invalid as a general warrant, and the evidence obtained was properly admitted. However, the court found that the trial judge’s summing up was inadequate. The summing up did not sufficiently address the jury’s questions regarding the standard of proof for the appellant’s involvement in the telephone conversations and the relevance of the mobile phones if the jury was not satisfied of the appellant’s involvement. The court also noted that the trial judge failed to explain what remained of the Crown’s case if the telephone conversations could not be relied upon.
The final orders of the court were not explicitly stated in the text provided. However, based on the court's findings, it is likely that the court either upheld the conviction or possibly ordered a retrial if the inadequate summing up was found to be a significant error affecting the outcome of the trial.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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.