Okoli v The Queen
[2019] WASCA 91
•28 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OKOLI -v- THE QUEEN [2019] WASCA 91
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 13 MAY 2019
DELIVERED : 28 JUNE 2019
FILE NO/S: CACR 119 of 2018
BETWEEN: EMEKA PAUL OKOLI
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HALL J
File Number : INS 240 of 2017
Catchwords:
Criminal law - Appeal - Whether any errors in judge's directions - Whether evidence capable of supporting the verdict of guilty - Whether conduct of defence case by counsel gave rise to a miscarriage of justice - Turns on own facts
Legislation:
Nil
Result:
Leave on ground 1 granted
Leave on grounds 2 - 5 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | S W O'Sullivan |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Criddle v The State of Western Australia [2017] WASCA 17
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Eravelly v The State of Western Australia [2018] WASCA 139
Evans v The State of Western Australia [2012] WASCA 13
Huggins v The State of Western Australia [2018] WASCA 61
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Moloney v The State of Western Australia [2006] WASCA 193
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v GW [2016] HCA 6; (2016) 258 CLR 108
R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366
Ruthsalz v The State of Western Australia [2018] WASCA 178
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Wells v The State of Western Australia [2017] WASCA 27
White v The Queen [2006] WASCA 62
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
JUDGMENT OF THE COURT:
Introduction
The appellant appeals against his conviction, following an eight‑day trial, of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth).
The appellant advances five grounds of appeal. Grounds 1 ‑ 3 complain of the adequacy of the trial judge's direction to the jury, respectively as to: identification evidence; the elements of knowledge and possession; and corroboration. Ground 4 asserts that the jury's verdict was unsafe and unreasonable in that the evidence was incapable of proving, beyond reasonable doubt, the critical element of identity. Ground 5 alleges a miscarriage of justice arising from defence counsel's error and failure to adduce certain evidence.
For the reasons that follow, we would grant leave to appeal on ground 1, refuse leave on the other grounds and dismiss the appeal.
Agreed or uncontroversial facts
The following facts were not in issue at trial and are common ground on appeal.[1]
[1] ts 183 - 184, 740; appellant's submissions [4] - [13]; respondent's submissions [4].
On or about 17 May 2016, shipping container MRKU8545675 (the container) arrived in Australia from Nigeria. It originally arrived in Sydney before being redirected to Perth.
The container was examined by Australian Border Force officers and subsequently by Australian Federal Police (the AFP). Inside the container was a quantity of wooden beams. A number of the beams had been hollowed out and contained within them small packets of a substance. Upon analysis, the substance was discovered to be 45.636 kg of methamphetamine with an average purity of 65.71%. Police substituted the methamphetamine with a harmless substance and tracked its progression. The container was delivered as addressed, namely to Kate M Stone at 473 Eighty Road, Baldivis, Western Australia 6171.
In the evening of 26 June 2016, two men appeared at that address with a truck and started to unload the container. Police arrested the two men and they were charged with attempting to possess a commercial quantity of methamphetamine.
Although not all formally admitted by the defence at trial, the following facts were not seriously disputed at trial and are common ground on appeal.[2]
[2] Appellant's submissions [9] - [11]; respondent's submissions [4].
During subsequent police investigations, the appellant was identified as a person of interest. Police intercepted telephone calls, including those involving the mobile phone number 0469 265 606 (the 606 number). Interception of these calls revealed that they were largely conducted in the Nigerian language, Igbo.
On 26 July 2016, the appellant was arrested and police executed search warrants:[3]
(1)over the appellant's person;
(2)over the appellant's car at 4/10 Keppler Circuit in Seaford; and
(3)at the appellant's home,[4] being 4/93 Brandy Creek Road in Warragul.
[3] ts 179, 184.
[4] At trial and on appeal, the parties seemed to use 'Melbourne' in a broad sense so as to encompass Victorian locations which would appear to be well outside of Melbourne, including the location at which the appellant lived.
Items were seized that later became part of the circumstantial limb of the Crown case at trial. Among them were:
(1)a red Nokia mobile phone registered to the name of Emily Brandy that was subscribed to the 606 number (the red Nokia);
(2)an HTC mobile phone (the HTC phone); and
(3)as further detailed at [19] below, a laptop (the laptop) containing:
(a)documents exchanged between Kate Stone and a Customs Agent, suggesting that Kate Stone was the importer of the container; and
(b)a photograph of Kate Stone's driver's licence.
The central issue at trial
The defence accepted that a commercial quantity of the border controlled drug methamphetamine was imported into Australia.[5] The main issue was whether the appellant's involvement in the importation of methamphetamine had been proved.[6]
[5] ts 181 - 182, 183.
[6] ts 180, 181, 740.
The Crown case
The Crown case in overview
As the parties agree on appeal, the Crown case at trial was that Kate Stone and Emily Brandy were pseudonyms which the appellant used to import the methamphetamine into Australia, by arranging for its shipping, clearance and receipt in Australia.[7] In proving the appellant's involvement, the Crown relied primarily upon:
(1)the evidence of an alleged co‑offender, EH;
(2)the interpreted intercepted telephone conversations; and
(3)material on the seized laptop and telephones.[8]
The Crown case was that the voice in the intercepted telephone conversations designated by an interpreter, Mr Anugoh, as 'A' belonged to the appellant.[9]
[7] ts 740; appellant's submissions [14]; respondent's submissions [5].
[8] Appellant's submissions [15]; respondent's submissions [5].
[9] ts 178.
The Crown put their case on the basis that acceptance of either EH's evidence or of further circumstantial evidence was sufficient to establish the appellant's guilt.[10] As such, it submitted that EH's evidence was not necessary to prove the appellant's guilt.[11] On the Crown case, these two parts of the evidence were not necessarily to be evaluated in isolation from each other. In opening, the Crown prosecutor suggested that much of the further circumstantial evidence would support EH's evidence and was for the jury to consider when determining their view of EH's credibility.[12]
EH's evidence
[10] ts 753, 762, 763, 765.
[11] ts 753, 762, 765.
[12] ts 179.
EH was involved in the importation and gave evidence that:
(1)He was born in Nigeria and his native language was Igbo. He moved to Malaysia in about 2009 and then, in 2013, came to Australia.[13] At times material to the importation, he lived in Perth.[14]
[13] ts 187 - 189, 190.
[14] ts 192, 225, 231 - 232.
(2)He had a very close friend named Chinedu who he had known from childhood in Nigeria and who lived in Malaysia. They spoke very frequently, usually via WhatsApp, including from 2015 up to his arrest.[15]
[15] ts 189, 197, 225, 238.
(3)In 2015, one of his friends, named Ansalon, called him and told him about a friend of Ansalon's, of the first name 'Emeka', who was in Australia and needed a job.[16] Ansalon asked him to call Emeka.[17] EH telephoned Emeka, who told him he was in Tasmania,[18] and discussed helping to get a job for Emeka.[19]
[16] ts 191 - 192.
[17] ts 191 - 192.
[18] ts 192.
[19] ts 192 - 193.
(4)In a later telephone conversation, Emeka told him that there were no jobs in Tasmania and he had moved to Melbourne and that he was married and had one child, a son.[20]
[20] ts 195.
(5)By 2016, he was having telephone conversations with Emeka once a month on a phone he had registered to a fake name.[21] Most of their communications were conducted this way.[22] He contacted Emeka on WhatsApp once in a while;[23] when he called on WhatsApp, he was told, 'Don't call this. This is my private number'.[24]
[21] ts 194, 195; see also ts 268 - 269.
[22] ts 197, 268.
[23] ts 268.
[24] ts 268.
(6)In 2016, Emeka told him that drugs were coming to Australia and he put Emeka in contact with Chinedu.[25]
[25] ts 194 - 195.
(7)Emeka spoke to him about a container which had arrived in Sydney and told him that he (Emeka) did not trust the guy with whom he was doing business.[26]
[26] ts 195, 196 - 197.
(8)Chinedu told him to pick up a total of $8,800 for the container from a location in Kwinana, which he did.[27]
[27] ts 197.
(9)Afterwards, he asked Chinedu who Kate Stone was.[28] Chinedu replied, 'Ask your friend Emeka.'[29] He did so, and Emeka told him she was his girlfriend, Kate Stone, and that he (Emeka) had a photo of her ID.[30]
[28] ts 243.
[29] ts 198, 243.
[30] ts 198 - 199.
(10)On instruction from Chinedu and the appellant, he banked $8,800 in the name of Kate Stone, in favour of a shipping company.[31] It was banked on his behalf by his wife via four ATM transactions.[32] When that was done, he telephoned each of Chinedu and the appellant to inform them;[33] in giving this evidence, EH evidently pointed to the appellant in saying that he telephoned 'him', and referred to him as Emeka.[34] He uploaded copies of the receipts onto an email account he had been told to use by Chinedu and by the appellant.[35] He verified copies of the relevant ATM receipts in a later AFP interview which are dated 23 June 2016.[36]
[31] ts 199 - 201, 205, 220 - 222.
[32] ts 199 - 200, 222 - 223, 233 - 234.
[33] ts 200 ‑ 201, 204 - 205.
[34] ts 204 - 205.
[35] ts 201, 225.
[36] ts 201 - 203; exhibit P1, BGB 3.
(11)The next week, after the container had been delivered, Chinedu told him that the white man who was meant to buy the drugs had fled the country to Thailand and that that man had told Chinedu that two people had been arrested.[37]
[37] ts 203 - 204, 205, 225.
(12)In separate telephone conversations, Chinedu and the appellant, Emeka, both asked him to drive, in a car with tinted windows, past the Baldivis address which Chinedu sent to him.[38] He then got his wife to do so, who confirmed with him that the container was there.[39] Afterwards, he informed Emeka and Chinedu, in separate conversations, that the container was at the Baldivis address.[40]
[38] ts 206, 225, 236.
[39] ts 206 - 207, 234 - 235, 236.
[40] ts 207, 235 - 236.
(13)Emeka called him on Friday of the same week and told him that he was in Perth. They arranged to meet up the next day, Saturday, at Emeka's hotel in Perth city.[41]
[41] ts 207 - 208.
(14)On Saturday, he was unable to locate the hotel, so he parked at Elizabeth Quay and called Emeka, who came down to meet him.[42] When he saw the appellant he beeped his horn;[43] in cross-examination, he explained that he was able to recognise the appellant because he had previously seen his photo on WhatsApp.[44] They then parked in an empty block next to the appellant's hotel for about 10 minutes.[45] While there, the appellant asked him to come up to the hotel and he replied, 'No, I'm not going to there.'[46] The appellant then asked him to drive them to the container's location.[47] He refused, saying that the appellant could go there himself.[48] They left the empty block, when he saw what he believed to be an unmarked police car arrive, and he dropped Emeka off at a bus stop around the corner.[49] That meeting was the first time he had ever seen the appellant in person, as opposed to in photographs.[50] EH denied counsel's suggestion that the first time he saw the appellant was in prison, describing it as 'bullshit'.[51]
[42] ts 208.
[43] ts 208.
[44] ts 258 - 259. See also ts 267 - 268 in which EH was re-examined on this point.
[45] ts 208.
[46] ts 208.
[47] ts 208.
[48] ts 208.
[49] ts 208 - 209.
[50] ts 258 - 259, 263, 267 - 268.
[51] ts 259 - 260.
(15)While on his way home, the appellant called him and told him that the appellant was with the container.[52] He told the appellant, in effect, that he did not want to have anything to do with it and not to call him again.[53] The appellant replied that he had another guy with whom he was going to organise to pick the container up.[54] The appellant also called him once he had arrived home, confirming that the appellant had seen the container, and he asked the appellant not to call him again.[55]
[52] ts 209.
[53] ts 209.
[54] ts 209.
[55] ts 209 - 210.
(16)On 25 July 2016, he had a conversation with Chinedu about their mutual friend having been beaten up.[56] Chinedu sent him a photo of that friend, in which the friend had been bashed in the eye, which he then sent to Emeka.[57] He called Emeka and asked him to tell his (Emeka's) men to leave his friend alone.[58]
[56] ts 211.
[57] ts 210 - 211.
[58] ts 211.
(17)He was arrested on 26 July 2016.[59]
[59] ts 212.
(18)At the time of his arrest, he was talking on the phone to one of the appellant's friends, who was threatening him.[60] He thought that the person he was speaking to may have been called 'Kingsley' or 'KC'.[61] He denied, in emphatic terms, defence counsel's suggestion that the person to whom he had spoken in the numerous conversations involving 'A' was not the appellant but the appellant's friend of the name KC.[62]
[60] ts 258.
[61] ts 257 - 258.
[62] ts 257 - 258, 261.
(19)After his arrest, he saw the appellant, Emeka, in prison who told him that everything would be all right.[63]
[63] ts 212.
(20)The first time he found out the appellant's surname was when he saw the charge paperwork; before that, he had known him as Emeka, and that his other name was Paul.[64]
[64] ts 213.
(21)During interviews with police, he was played recordings of intercepted phone conversations, corresponding with the transcripts of calls '71' and '34' comprising exhibit P2,[65] in which he recognised his own voice and those of Chinedu and Emeka.[66]
[65] Exhibit P2, BGB 4 - 5.
[66] ts 213.
(22)After being played those same telephone calls in chief, he identified 'A' in each as the appellant.[67] In call '71', he identified himself as 'C' in chief and in cross-examination.[68] In call '34', he identified Chinedu as 'C' in chief and in cross-examination;[69] in re-examination he confirmed that the voices in call '34' were the appellant's and Chinedu's and he was not involved in the call.[70]
[67] ts 216 - 217.
[68] ts 217, 245 - 246.
[69] ts 216 - 217, 243 - 244.
[70] ts 267.
(23)When played a further call '65',[71] in cross-examination, he initially identified words spoken by 'B' as being spoken by Chinedu before then identifying Chinedu as 'A' and the appellant as 'B'.[72] When call '65' was replayed to him in re‑examination, he initially identified the first speaker ('A') as Chinedu before clarifying that it was the appellant and then identified words spoken by 'B' as spoken by Chinedu.[73]
[71] Exhibit P3, BGB 13 - 14.
[72] ts 250 - 251.
[73] ts 265 - 266.
(24)When played call '95',[74] in cross-examination, he identified words spoken by 'C' as spoken by himself to the appellant, being the other party to the call ('A').[75]
[74] Exhibit P3, BGB 19.
[75] ts 251 - 252.
(25)When then played call '317',[76] in cross-examination, in which 'B' complained that 'A' would not tell him his name, he identified 'B' as Chinedu and 'A' as the appellant.[77] He confirmed that call '317' had taken place on 7 July 2016, after he had banked the $8,800.[78]
(26)In exchange for giving evidence against the appellant, he received a three‑year discount on his sentence which would be re-added if he failed to give evidence against the appellant.[79] He did not seek a discount before talking to the police.[80] He pleaded guilty knowing that if he did so, the charges against his wife would be dropped.[81]
(27)Previously, in 2015, on Chinedu's instruction, he had arranged for $142,000 to be moved from Australia to Chinedu's Nigerian bank account.[82] The judge gave EH a certificate under s 11 of the Evidence Act 1906 (WA) in relation to this aspect of his evidence.[83]
(28)He knew that what was going on was illegal and related to drug importation.[84] He knew that there were drugs in the container and there was a drug deal going on.[85] He was to have interest‑free use of Chinedu's share of the money as he slowly sent it back to Chinedu.[86] Otherwise, he did not expect to receive any money.[87] Counsel for the appellant challenged EH's evidence as to the reward he expected for his participation.[88]
(29)In cross‑examination, EH denied that he was acting to assist Chinedu in importing the drugs; he said that it was the appellant who had imported the container into Australia.[89] He said that Chinedu had the contact in Western Australia to buy the drugs.[90]
(30)EH denied the suggestion from defence counsel that he had been asked by Chinedu to blame the appellant and to identify the appellant as involved in the importation.[91]
Circumstantial evidence
The intercepted telephone conversations
[76] Exhibit P3, BGB 68.
[77] ts 253 - 256.
[78] ts 252.
[79] ts 219 - 220, 240, 259.
[80] ts 240, 259.
[81] ts 239 - 240.
[82] ts 193 - 194, 225 - 228, 230, 239, 262.
[83] ts 230, 269.
[84] ts 224.
[85] ts 210, 236 - 237.
[86] ts 236 - 237, 238, 249, 265.
[87] ts 236, 237, 249.
[88] ts 237, 238 - 239, 247 - 248.
[89] ts 231, 232 - 233, 259 - 260.
[90] ts 259 - 260, 265.
[91] ts 256 - 257, 259 - 260.
The Crown led evidence of Mr Anugoh of interpretations of the intercepted telephone conversations from Igbo into English. The Crown tendered 40 of 170 of Mr Anugoh's transcripts of interpretations of calls of the 606 number.[92] In the transcript he provided, Mr Anugoh denoted various voices in the telephone conversations as 'A', 'B', 'C', 'D' and 'E'. Mr Anugoh gave evidence that the voice denoted as 'A' was the same person the whole way through the transcript, as were, respectively, 'B' and 'C'.[93] In respect of call '34', Mr Anugoh gave evidence that 'C' was EH.[94]
[92] ts 177, 398; exhibit P3, BGB 6 - 80.
[93] ts 284.
[94] ts 288 - 289.
Mr Anugoh transcribed call '631' as taking place between two persons, whom he designated as 'A' and 'D'.[95] He (evidently mistakenly) identified 'D' as Chinedu in chief; in cross-examination he clarified that 'D' was a friend of Chinedu and 'B' was Chinedu.[96] His transcript records 'D' saying to 'A': 'Your brother Chukwuma (UBA) has been talking at me.'[97]
[95] ts 420; exhibit P3, BGB 79.
[96] ts 397, 399.
[97] ts 420; exhibit P3, BGB 79.
In support of its case that 'A' was the appellant, the Crown relied on the facts that, in the telephone conversations, the person designated 'A':
(1)was a male speaking Igbo;
(2)identified himself as having lived in Malaysia, travelling to Perth in July 2016 and having a wife and young child; and
(3)spoke about travelling from Melbourne to inspect the container.
The evidence from the laptop and Customs documentation
Mr Sumegi was the AFP officer who analysed the laptop.[98] He gave evidence as to documents found on it. Those documents were personal to the appellant and confirmed that the laptop was owned and used by him. They included the appellant's curriculum vitae, recording his experience with Customs matters,[99] and material relating to Kate Stone, namely:
(1)a photograph of the driver's licence of Kate Stone;[100] and
(2)electronic documentation in the name of Kate Stone, including correspondence with Customs, relating to the container and its importation,[101] and recording Kate Stone's contact number as (+)61469761256 (the 256 number).[102]
[98] See ts 525, 527.
[99] Exhibit P42, BGB 223 - 226.
[100] Exhibit P28, BGB 198.
[101] Exhibit P29 - exhibit P41, BGB 199 - 214.
[102] Exhibit P31, BGB 201.
Mr Pritchard, a Customs Agent, gave evidence in respect of the container
(1)that corresponded with Customs documents found on the laptop in the name of Kate Stone; and
(2)confirming that payment was received via four transactions totalling around $8,000.[103]
Mr Pritchard also provided testimony that, and further Customs documentation recording that, Kate Stone's contact number was the 256 number.[104]
Telephone records
[103] ts 575 - 576.
[104] ts 567 - 568; exhibit P46, BGB 261, 269, 270, 271.
The Crown relied on the following telephone evidence:
(1)when seized, the red Nokia contained a sim card with an IMEI number of 35960305967494*;[105]
(2)a record, and accompanying testimony, showing that both the 606 number and the 256 number were attached to a handset with that IMEI number;[106] and
(3)records, and accompanying testimony, showing that the 606 number was registered in the name of Emily Brandy and the 256 number was registered in the name of Kate Stone.[107]
[105] ts 466 - 467; exhibit P43, BGB 233.
[106] ts 447, 450 - 451, 457; exhibit P15; exhibit P6 - P7, BGB 84 - 181; exhibit P8, BGB 182 - 184. See also ts 445.
[107] ts 436 - 440; exhibit D2, BGB 82 - 83.
The Crown also relied on call charge records for the 606 number with entries showing that:
(1)at relevant times, the red Nokia was being used in Warragul South, where the appellant lived, and Seaford, where the appellant worked;[108] and
(2)the red Nokia was being used in Perth on 2 July 2016.[109]
Travel movement records
[108] ts 764 - 765; exhibit P6, BGB 84 - 131; exhibit P7, BGB 132 - 181.
[109] Exhibit P7, BGB 145 - 147.
The Crown led evidence of the appellant travelling from Melbourne to Perth which it suggested supported EH's evidence that he saw the appellant in Perth.[110] This included Jetstar records for travel booking HE7EMG[111] (the flight reservation records) which indicated that the appellant travelled from Melbourne to Perth on 1 July 2016 and returned to Melbourne on 3 July 2016. The Crown also relied on evidence of AFP officers that a Jetstar invoice for travel booking HE7EMG was found in the search of the appellant's car.[112]
[110] ts 179.
[111] Exhibit P23 and exhibit P24, BGB 190 - 192.
[112] ts 466, 563; exhibit P45, BGB 259 - 260.
The defence case
The defence case was that the appellant had no knowledge of the drugs and no involvement at all in the importation.[113]
[113] ts 740.
The appellant's evidence included that:
(1)He was born in Nigeria and spoke Igbo.[114] He had lived in Malaysia before moving to live, including in 2015, in Tasmania.[115] He then moved to Melbourne to pursue employment opportunities and around that time had a wife and young child.[116]
[114] ts 603.
[115] ts 604 - 607, 610.
[116] ts 610, 653.
(2)He was not involved in the importation.[117]
(3)He did not know of anyone named Chinedu, Uba, Kate Stone or Emily Brandy.[118] He did not know Ansalon.[119] He could not explain why Ansalon's number was on the HTC phone.[120]
(4)The first time he met EH was in prison.[121]
(5)In the couple of weeks leading up to his arrest, he spoke to EH on the red Nokia via WhatsApp several times when EH called his phone asking for the person he had previously spoken to on that phone.[122] EH also sent him a photograph of someone who had a bashed face.[123]
(6)He did not know the 606 number.[124] He was not a party to any of the intercepted telephone calls and did not recognise his voice in any of the telephone conversations in which EH identified him.[125]
(7)He accepted that the laptop was his.[126] However, he did not store any of the documents concerning Kate Stone that had been found on it.[127] He thought the documents must have come from the HTC phone.[128]
(8)He had a friend he described as 'KC'; he identified his first name as 'Kingsley' and his last name as 'Chukwuma' or 'Chukooka' - he was not sure which.[129] KC was Nigerian and spoke Igbo.[130] He met KC while living in Tasmania.[131] KC had previously lived in Malaysia and also lived in Melbourne.[132]
(9)From June 2016 to a few weeks before his arrest, KC had stayed with him at the Brandy Creek, Warragul address.[133] During that time, KC had access to the laptop and the HTC phone which he allowed KC to use.[134] The red Nokia belonged to KC.[135] KC gave it to him to use.[136] The red Nokia contained contact numbers for 'K.c' and 'Kc'.[137]
(10)He had travelled to Perth in July 2016 for a weekend with KC on KC's suggestion.[138] As evidenced by the flight reservation records for travel booking HE7EMG,[139] he paid for his flight to Perth in July 2016.[140] He did not take the red Nokia to Perth but KC may have.[141]
(11)Sometime after their return to Victoria, KC and he had a fight, after which KC left his house and the red Nokia and laptop were taken.[142] He never saw KC again.[143] The red Nokia, along with the sim card, and the laptop were returned just before his arrest in a bag left at his house.[144] In examination-in-chief, he said that he could not be specific about when they were returned.[145] In cross-examination, he said that the bag was put on his doorstep on 25 July 2016, the day before his arrest.[146] He also said that he received a call from Kingsley's friend, saying that he wanted to bring the things back.[147] After the red Nokia was left at his house, he put it in his car, hoping that KC would call him.[148]
[117] ts 617, 638, 660.
[118] ts 610 - 611, 650, 654.
[119] ts 638.
[120] ts 638 - 639.
[121] ts 611 - 612.
[122] ts 612 - 613, 620 - 621.
[123] ts 621.
[124] ts 653.
[125] ts 617, 636.
[126] ts 617. See also ts 658 - 659.
[127] ts 617, 658 - 659.
[128] ts 617.
[129] ts 607 - 609, 629.
[130] ts 608, 629.
[131] ts 607, 629 - 630.
[132] ts 607, 613 - 614.
[133] ts 613 - 614, 618, 628 - 632.
[134] ts 618 - 622.
[135] ts 618, 619.
[136] ts 619 - 620.
[137] ts 642 - 643; exhibit P43, BGB 249.
[138] ts 615 - 616, 641.
[139] Exhibit P23, BGB 190 - 192.
[140] ts 662.
[141] ts 641 - 642, 645.
[142] ts 614, 620, 632 - 633.
[143] ts 622.
[144] ts 622, 627.
[145] ts 620.
[146] ts 632, 633.
[147] ts 632.
[148] ts 633.
The defence accepted that person 'A' was involved in the importation of methamphetamine, that person knowing of:[149]
(1)the container and its containing a valuable commodity, probably being drugs; and
(2)people in Nigeria who were interested in its importation or contents.
The defence disputed that the appellant was 'A'. The defence contended that there was a reasonable possibility that someone else was involved in the importation and that the appellant was being blamed for it.[150]
[149] ts 185 - 186, 766.
[150] ts 765.
One aspect of the defence case was that, instead of the appellant, 'A' was 'KC'/'Kingsley' and that KC also had access to the laptop and red Nokia.[151] In answer to the Crown's suggestion that the appellant's evidence that KC had taken and used the red Nokia and laptop was fabricated,[152] the defence submitted that there was evidence that KC was not a fictitious person.[153]
[151] ts 765, 766 - 767.
[152] ts 764.
[153] ts 765.
The defence called a different interpreter, Mr Achinefu, who transcribed call '631' markedly differently from Mr Anugoh, evidently attributing the equivalent dialogue to different participants in the conversation.[154] Mr Achinefu interpreted the conversation such that a person designated 'R' said, 'Have you heard from my brother Chukwuma?' and person C replied, 'No. We've not heard from Chukwuma.'[155] Despite this, defence counsel later conceded that there was no real materiality in the difference between the transcribed interpretations of Mr Achinefu and the Crown interpreter, Mr Anugoh.[156]
[154] ts 730 - 733.
[155] ts 732.
[156] ts 750, 766.
The defence emphasised that the appellant's name is not mentioned at any point in the telephone conversations.[157] Consequently, it submitted that the Crown case relied on the evidence of EH to identify the appellant as 'A' in the telephone conversations.[158] The defence case was that the telephone calls, absent EH's evidence, were not enough to prove the appellant's guilt.[159] It described EH's evidence in this respect as a significant plank in, and critical to, the Crown case.[160]
[157] ts 186.
[158] ts 186.
[159] ts 766.
[160] ts 184, 186.
The defence submitted that it would be difficult for EH to identify the appellant's voice in circumstances where he had only met the appellant once for a short period.[161] The defence suggested that EH's credibility was affected by his strong incentive to incriminate the appellant in order to (continue to) receive a discount on his sentence.[162] Suggestions were also made that EH may have been trying to incriminate the appellant to protect his wife who was initially charged and whom the defence alleged was somewhat involved in the transaction.[163]
[161] ts 766.
[162] ts 184.
[163] ts 185.
The judge's summing up
The trial judge provided the jury with an overview of the elements of the importation offence charged. In doing so, his Honour described one such element as being that the appellant 'knew or believed or was reckless as to the fact that the substance was a border controlled drug'.[164] That element was incorporated into a question trail for the jury which, relevantly, stated:
[164] ts 742.
You may only answer 'yes' to any question if you are satisfied beyond reasonable doubt of that answer. If you have a reasonable doubt then the answer must be 'no'
…
4.Did [the appellant] know or believe or was he reckless as to the fact, that the substance contained in the container was a border controlled drug? That is:
a)was he aware that it was a border controlled drug; or
b)did he believe it was a border controlled drug; or
c)was he aware that there was a substantial risk that it was a border controlled drug and, in the circumstances known to him, it was unjustifiable to take that risk?
If 'yes', go to question 5.
If 'no', not guilty.
The trial judge went on to direct the jury that:[165]
The fourth element is significant. It must be proven that the accused either knew or believed or was reckless as to the fact that the container contained a border controlled drug. To know something is to be aware of it.
To believe something is to have trust or confidence that something exists even though you may not have direct personal knowledge of it. To be reckless about something means to be aware that there's a substantial risk that that thing exists and that having regard to the circumstances known to the person it's unjustifiable to take that risk. So any one of those states of mind is sufficient to establish this element. If the accused knew that there was methamphetamine in the container, then that element would be proved.
If he didn't know for sure, but believed that there was methamphetamine in the container, then that would prove the element. If he neither knew nor believed, but was aware that there was a substantial risk that there was methamphetamine in the container and in the circumstances known to him it was unreasonable to proceed knowing that risk that would prove the element. Of course, you appreciate that the accused here says that he didn't know anything at all about the container or its contents.
[165] ts 743 - 744.
After distributing the question trail to the jury, the trial judge read it to them. His Honour further explained of the fourth element in that trail:[166]
So only one of those things has been proven. (a) relates to knowledge, (b) to belie[f], (c) to recklessness. So if his state of mind was any one of those three things and you were satisfied of that beyond reasonable doubt you would answer yes and go to question 5. If no, then he would be not guilty.
[166] ts 745.
Later, the trial judge stated:[167]
[O]ne area that requires inferential reasoning in this case is in regard to the state of mind of the accused. In order to be guilty of this offence, it must be proven that he intended to import the drugs and that he knew, believed or was reckless that they were, in fact, border controlled drugs. A person's state of mind can't be observed directly. It's usually established by drawing an inference by what a person says or does.
The accused denies any intention or knowledge as to the drugs in this case, but if you reject that evidence, you will need to consider whether an inference as to his state of mind can be drawn from the evidence. There's nothing unusual about this exercise, but you do have to go about it in the way I've described. Now, you would appreciate that [EH] has given direct evidence that the accused played a role in this importation. He says that he had telephone conversations with the accused and can identify his voice on the recorded calls.
He says that they discussed the arrival of the container and the inspection of it at the Baldivis address. He says that he met the accused when the accused travelled to Perth in July of 2016 and that they had further conversation in that regard. If you accept the evidence of [EH], it is a - it is strong evidence against the accused; however, there's some important directions that I need to give to you about him. [EH] admits that he was involved in the importation and he has pleaded guilty to that involvement, as you've heard.
He also agreed to cooperate with the authorities and give evidence against the accused. For that promise of cooperation, he received a significant reduction on his sentence. It's suggested to you that that provides him with a powerful motive to lie and that that is what he has done. It's suggested that he was - he has falsely implicated the accused in order to get his discount and, perhaps, to protect others. Those suggestions are made by [defence counsel].
On the other hand, his promise to - is - was to give truthful evidence, and you must understand that he would lose his discount if it were proven that he had not done so. Of course, whether he has given truthful evidence is entirely a matter for you to determine. When you're considering the evidence of [EH], it's relevant for you to take into account that he is an admitted criminal and that he has a personal interest in giving evidence against the accused. For those reasons, you should approach his evidence with some caution.
That doesn't mean that you can't rely on his evidence; however, you should only take that evidence into account if, having carefully considered it and the circumstances in which it has been given, you're satisfied that it's truthful. One thing that you may take into account is whether and to what extent [EH's] evidence is corroborated or supported by independent evidence. Corroboration is evidence that independently establishes some material fact that [EH] gave evidence about.
Now, corroboration is not required and it is open to you to accept his evidence even if it is not corroborated; however, if there is other evidence that supports him, that may be a factor which is relevant in deciding whether you can accept him as a truthful witness, either generally or in respect of a particular matter. Now, there are a number of pieces of evidence that are capable of corroborating [EH's] evidence.
[167] ts 755 - 756.
His Honour went on to comment that the following five pieces of evidence were capable of corroborating EH's evidence:[168]
(1)the evidence as to the four deposits of cash that were made at the ATM, namely the deposit receipts and the evidence of the Customs Agent, Mr Pritchard;
(2)the fact and content of the recorded intercepted telephone conversations;
(3)the documents relating to the timeline in which the appellant travelled from Melbourne to Perth on 1 July 2016 and back on 3 July 2016;
(4)the police-found telephones, including the red Nokia, in the appellant's car; and
(5)the documents on the laptop seized from the appellant's home and evidence going to the appellant being the user of that laptop.
[168] ts 756 - 757.
The trial judge directed the jury as to EH's identification of the appellant as follows:[169]
[169] ts 757 - 760.
Of course, you would appreciate that the defence don't say that [EH] is lying about everything. Rather, they say he is lying about whether the accused was involved. In particular, they challenge his identification of the voice of the accused on the calls, the voice - the person that was identified by Mr Anugoh as - and who he designated as A in those calls.
Now, [defence counsel] points out to you that [EH's] evidence - that, on [EH's] evidence, he met the accused only once in person, for a relatively briefly [sic] time, and it's submitted to you that he could not reasonably provide a reliable identification of the voice of the accused in those circumstances. That's a matter for you. It is important that you give careful consideration to that evidence of voice identification and consider the possibility of a mistaken or false identification. You should bear in mind the number of times that they, that is, [EH] and A, spoke to each other on the telephone, and you have what appears to be only a portion of those calls, but you have 40 of them.
You can bear in mind the apparent length and number of times that A and [EH] spoke and the length of time then that they spoke in Perth, if you accept that they did, and whether there is - you should also consider whether there's any other evidence that might support the identification. Now, it's a matter for you, but there is other evidence that is capable of supporting what [EH] says in regards to the identification of A in those calls. Amongst that evidence is the content of the calls themself. Now, you would appreciate that A is clearly a male person who is speaking in the Igbo language, who refers to having lived in Malaysia, who refers to travelling to Perth, and who also refers to having a wife and a young child.
You would - you can take into account that the relevant 606 telephone, if you accept this evidence, was found in the accused's possession when he was arrested by the police and that telephone was in Perth, it would seem on the call charge records, between 1 and 3 July given that it appears to be registering to towers in the Perth metropolitan area at that time and was, it would seem, communicating with others who were involved. You can take into account the fact that the accused did travel to Perth, he accepts, from Melbourne on 1 July and returned on 3 July and, of course, you can take into account the documents found on his computer, which I've already referred to.
So when you are considering whether A is, in fact, correctly identified by [EH] as the accused person, you should consider that other evidence as well. The defence suggests to you that this other evidence is equally consistent with KC or Kingsley, being the person A. The defence accept that whoever A is, he was clearly involved in this importation. Now this possibility that A is KC or Kingsley is something that you should consider bearing in mind, of course, that the only evidence that you have in respect of this person comes from the accused.
What the accused has said about that person is that he met this man in Tasmania, he was also Nigerian, also speaks Igbo, and lived with him at some stage at his premises in Warragul in Victoria. He says that KC gave him the red Nokia 606 phone, but took it back at some stage, or at least had use of that phone, and that KC also had access to his computer, that KC took the 606 phone and computer and returned them the day before the accused was arrested. Now, the suggestion that KC was A needs to be considered not just on the basis of what the accused said, but in the light of the evidence that you've heard as a whole.
That includes the content of the calls and the call charge records. The Crown has pointed out to you that the 606 phone was used to call a number that appears to have been recorded in one of the phones used by the accused as a contact number for KC and suggests to you that if KC was, in fact, the person using the 606 phone, it would be odd that he would be calling himself and that that is more consistent with their case that, in fact, the accused was using the 606 phone.
There's another matter that I think I should draw to your attention and it arises from the evidence of Mr Achinefu that was given to you yesterday … I will just draw this to your attention. In Mr Achinefu's interpretation of the call which is the sixth one that he interpreted, which is call 631, he referred to the two people who were speaking referring to a person who they refer to as Chukwuma. Now you did hear that name referred to once before in the evidence of the accused.
He said that whilst he didn't know for sure, he thought that Kingsley's surname was Chukwuma - or Chukwuba. I think he gave another slight version of it. In that call, which the other interpreter, Mr Anugoh said was between A and D there is a reference to this person Chukwuma and Mr Achinefu says that the receiver says:
Have your brother heard from my brother Chukwuma?
And that other person says:
No. We have not heard from Chukwuma.
Now this is a comment of mine and it's entirely a matter for you. But if that Chukwuma is the person that the accused has referred to as Kingsley it would be odd that if A is KC, or Kingsley, he would be referring to himself as in the third person. But the significance or otherwise of that evidence is entirely a matter for you.
The trial judge said the following in relation to the accused's evidence:[170]
Now, in this case, the accused elected to give evidence. Having done so, he is to be considered a witness just like any other. And you should consider his credibility and reliability. Give consideration to whether what he said was inherently believable and consistent with other evidence.
Take into account how well his evidence stood up under cross‑examination. He says that he was not involved at all in this importation. If you accept his evidence or it causes you to have a reasonable doubt as to his guilt, then you couldn't find him guilty. However, you should not consider his evidence in isolation, but consider it in the context of the evidence as a whole.
[170] ts 748.
After the jury retired to consider their verdict, the following exchange occurred between the trial judge and defence counsel, Mr Freitag, and Crown counsel, Mr O'Sullivan:[171]
[171] ts 769 - 771.
HALL J: Mr Freitag, any comments on my directions?
FREITAG, MR: No, your Honour.
HALL J: Mr O'Sullivan[?]
O'SULLIVAN, MR: … … I'm just wondering whether you sufficiently covered Liberato.
HALL J: It seems to me that there's really no need for a Liberato direction in those circumstances, but thank you for raising it.
O'SULLIVAN, MR: Yes.
HALL J: Mr Freitag, did you want to - - -
FREITAG, MR: When I heard your Honour's direction last night in relation to the accused's evidence, I didn't have a difficulty with it. Last night, your Honour said - and your Honour will have the words closer than I've got them or they will be in the transcript - that the accused elected to give evidence. He didn't have to, 'And if you accept it or if it gives rise to a reasonable doubt, that would be a verdict, essentially, of not guilty.'
HALL J: Yes. That's right.
FREITAG, MR: I don't know that your Honour needs to say more than that. Your Honour has made the onus of proof very clear. You've said it doesn't shift. Your Honour's - it didn't occur to me. I appreciate my friend raising the issue and I think that's an appropriate thing for him to do, but it didn't occur to me that your Honour needed to say more about that.
HALL J: And that's exactly what I - I said, 'The accused says that he was not involved at all in this importation. If you accept his evidence or it causes you to have a reasonable doubt as to his guilt, then you could not find him guilty. However, you should not consider his evidence in isolation but within the context of the evidence as a whole.' So I'm satisfied that that's sufficient in the circumstances.
FREITAG, MR: Yes.
Grounds of appeal
The appellant advances five grounds of appeal as follows:
1.There was a miscarriage of justice when his Honour failed to adequately direct the jury on the dangers of identification evidence.
2.There was a miscarriage of justice when his Honour failed to adequately direct the jury as to the requirements of the elements of knowledge and possession.
3.There was a miscarriage of justice when his Honour failed to adequately direct the jury on corroboration evidence.
4.The verdict of the jury was unreasonable and unsafe as the identification evidence given at the trial could not support the verdict because a jury acting reasonably ought to have had a reasonable doubt to acquit the accused.
5.The trial was unfair and a miscarriage of justice when trial counsel made error and failed to adduce evidence.
The question of leave was referred to the hearing of the appeal.[172]
[172] Order of Mazza JA, 8 December 2018.
Ground 1: the voice identification direction
Ground 1 asserts that the judge's inadequate direction on the dangers of identification evidence gave rise to a miscarriage of justice. The appellant's submissions make clear that this ground is directed to EH's voice identification of the appellant. The appellant complains that the judge failed to isolate and identify, for the jury, particular features of EH's identification evidence that would reasonably be regarded as undermining its reliability.[173] For example, the appellant complains that the judge failed to point out that, in telephone conversations the subject of EH's evidence:
(1)Chinedu said to EH: 'Ask your friend Emeka'.
(2)Yet, subsequently, in call '317' with 'A' (thus, on the Crown case, the appellant), a speaker identified by EH as Chinedu said he did not know the name of the other party to the conversation.[174]
[173] Appeal ts 16, 20.
[174] Appeal ts 19 - 20.
Generally speaking, in the course of directing the jury, a trial judge must give such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care needed in assessing certain types of evidence, of which identification evidence is one example.[175] What gives rise to the need for such a warning in relation to the evidence is that an aspect of the evidence gives rise to a perceptible risk of a miscarriage of justice. A perceptible risk of that kind arises if there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury.[176] Such a risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable.[177]
[175] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].
[176] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86, 91; R v GW [2016] HCA 6; (2016) 258 CLR 108 [50]; Huggins v The State of Western Australia [2018] WASCA 61 [719]; Eravelly v The State of Western Australia [2018] WASCA 139 [27].
[177] R v GW [50]; Eravelly [27].
We turn to identification warnings in particular. The applicable legal principles, and those upon which the appellant relies, were recently outlined by this court in Criddle v The State of Western Australia as follows:[178]
[178] Criddle v The State of Western Australia [2017] WASCA 17 [107] - [109].
It is well-recognised by the law that identification witnesses may be honest and convincing, but nevertheless unreliable. Such evidence has frequently led to proven miscarriages of justice. As a result, in Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
[T]he seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case': Smith v The Queen (1990) 64 ALJR 588, 588. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence': Kelleher v The Queen (1974) 131 CLR 534, 551. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence (561 - 562).'
Later, their Honours said:
A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused (565 ‑ 566).'
While Domican v The Queen concerned visual identification, in our opinion, analogous dangers arise in other forms of identification which rely on sensory perception. Accordingly, where disputed voice identification is led, a Domican warning should be given: Bulejcik v The Queen (397 ‑ 399); R v Evan [2006] QCA 527; (2006) 175 A Crim R 1 [73] (Keane JA) and J D Heydon AC, Cross on Evidence (10th ed) [1445]. So, too, should a Domican warning be given in the case of disputed identification by smell.
In the case of identification evidence, it is the 'seductive effect'[179] of such evidence that is not obvious to the lay mind, and in respect of which the court has special knowledge, experience and awareness, thus giving rise to the requirement of a warning.[180] As five members of this court observed in Winmar v The State of Western Australia,[181] what lies at the heart of the identification warning is the proposition, not obvious to a lay jury, that a confident and honest witness giving identification evidence may, nevertheless, be entirely wrong. That can also be seen in the first sentence of the passage from Criddle set out at [43] above. In other words, it is the possibility of an honest but mistaken witness very convincingly identifying an accused that gives rise to the need for an identification warning. It is the court's special knowledge, expertise or awareness of such a possibility which warrants the giving of an identification warning,[182] and which informs its necessary content.[183] Such a warning must be given where identification evidence is any significant part of the proof of guilt.[184] Identification evidence challenged on the ground that it is dishonest is not materially different from other evidence, the credibility of which is challenged. Insofar as identification evidence is said to be dishonest, it is not its character as identification evidence that gives rise to any need for a warning as to the evidence. Subject to presently immaterial exceptions, credibility and honesty are not matters of which courts have special knowledge or awareness; rather, they are matters properly within the province of the jury.[185]
[179] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561
[180] Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [22], [25].
[181] Winmar [25].
[182] Winmar [23].
[183] Domican (562).
[184] Domican (561).
[185] See Winmar [23].
In our view, the critical substance of EH's evidence did not involve, and was not founded upon, an exercise of qualitative judgement by EH in identifying or recognising a voice, in respect of which EH might have been honestly mistaken. We accept that his evidence included an element of this kind, insofar as he identified the voices which could be heard on certain of the transcribed telephone conversations. However, the substance of his evidence was that:
(1)At the suggestion of Chinedu, he made telephone contact with a person whose name was said to be Emeka.
(2)Thereafter, he had numerous telephone conversations with Emeka.
(3)Many of those conversations concerned a container of drugs which Emeka was arranging to transport from Sydney to a location in Perth.
(4)After EH had his wife drive past the Baldivis address to confirm the container's presence there, he informed Emeka and Chinedu, in separate telephone conversations, that the container was at the Baldivis address.
(5)Soon after this, Emeka called him and arranged a meeting.
(6)After that, he met with Emeka, whom he recognised from photographs he had seen on WhatsApp. During their discussions, Emeka asked EH to take him to where the container was located.
In our view, it could not sensibly be suggested that EH was mistaken in relation to this evidence. The defence did not suggest that EH was mistaken in these respects. That is evident from the cross‑examination of EH. See, for example, [15](14), (18), (29), (30) above. The defence case was that the person with whom EH had the relevant telephone conversations was KC, not the appellant, and that, in saying otherwise, EH was lying, probably at the behest of Chinedu, EH's old friend.
Insofar as EH gave evidence identifying the appellant's voice, such evidence was subsidiary to, and could not be considered in isolation from, the evidence summarised in [45] above, the evaluation of which turned on the question of honesty. For the reasons in [44] - [46], in these circumstances, EH's evidence did not give rise to any perceptible risk of a miscarriage of justice arising from a mistaken voice identification. Further, for these reasons, in this case it could not be said that EH's evidence identifying the appellant's voice was a significant part of the proof of the appellant's guilt.[186]
[186] Domican (561).
In this case, the judge's direction:
(1)emphasised the importance of giving careful consideration to the evidence of voice identification and to consider the possibility of a mistaken or false identification;
(2)told the jury they should bear in mind the number of times that EH and the person designated as 'A' spoke to each other on the telephone, and the length of time for which they spoke; and
(3)told the jury that they should bear in mind the possibility that they may consider there was other evidence that is capable of supporting what EH said as regards the identification of 'A', referring to:
(a)the evidence that 'A' was a male person speaking in the Igbo language and referring to having lived in Malaysia, to travelling to Perth and to having a wife and young child;
(b)the evidence that a telephone associated with the 606 number was found in the appellant's possession and was being used in the Perth metropolitan area between 1 and 3 July 2016, in circumstances where the appellant did travel to Perth from 1 - 3 July; and
(c)the content of the documents found on the appellant's computer.
Further, the judge directed the jury as to their assessment of the honesty of EH's evidence, as summarised in [55] below. In our view, the circumstances of the trial did not require the judge to give any different or further direction concerning voice identification beyond the directions he gave to the jury. While we would grant leave to appeal on this ground, we would not uphold it.
Ground 2: directions as to knowledge and possession
The appellant submits that:[187]
'[i]n order for a person to be convicted of the charge of attempting to possess a marketable quantity of a border controlled drug which had been unlawfully imported, the Crown had to prove, as fault elements, an intention to commit the substantive offence, and … knowledge that the substance attempted to be possessed was a border controlled drug'.
The appellant submits that, in this case, the jury were instructed that it was enough if they found that the appellant either knew that, or was reckless as to the fact that, the container held a border controlled drug.[188]
[187] Appellant's submissions [48].
[188] Appellant's submissions [53].
Ground 2, and the appellant's submissions in support of it, proceed on the erroneous basis that the offence was one of attempted possession. That was not the charge which the appellant faced, and of which he was convicted. The appellant was charged with an importation offence. The fault element for the importation offence with which the appellant was charged was one of recklessness.[189] That being so, the appellant's criticism of his Honour's direction concerning the fault element of the offence falls away.[190] Ground 2 is without merit.
[189] Criminal Code (Cth), s 307.1(2).
[190] See appeal ts 25 - 26, appellant's submissions [50] - [52].
Ground 3: corroboration
Ground 3 is expressed in terms of the judge's failure to adequately direct the jury on 'corroboration evidence'. So framed, the ground does not make clear the substance of what is said to have been wrong with the judge's direction. The appellant's written submissions do not substantially advance the position in this respect. Those submissions refer to aspects of the passage of the judge's directions set out in [34] above, without identifying what is said to have been erroneous in, or omitted from, what the judge said. In oral submissions, the appellant contended, in effect, that the judge should have, but failed to, comment on EH's evidence and evidence which conflicted with it.[191] The appellant did not identify the comment(s) which, on his submission, the judge should have made.
[191] Appeal ts 22 - 23, 24.
Section 50 of the Evidence Act provides:
50. Corroboration warnings not generally required
(1)In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2)On the trial of a person on indictment for an offence -
(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.
The proper construction and effect of s 50 has been considered in a number of cases. See, for example, White v The Queen;[192] Moloney v The State of Western Australia;[193] Evans v The State of Western Australia;[194] Santos v The State of Western Australia [No 2];[195] Ruthsalz v The State of Western Australia.[196]
[192] White v The Queen [2006] WASCA 62 [77] ‑ [78].
[193] Moloney v The State of Western Australia [2006] WASCA 193 [9] ‑ [14].
[194] Evans v The State of Western Australia [2012] WASCA 13 [41] ‑ [51].
[195] Santos v The State of Western Australia[No 2] [2013] WASCA 39 [46] ‑ [48].
[196] Ruthsalz v The State of Western Australia [2018] WASCA 178 [176] ‑ [180].
The judge directed the jury that:
(1)His directions about EH were important.
(2)EH was, as he admitted, involved in the importation and had pleaded guilty to it, and had agreed to cooperate with the authorities and to give evidence against the appellant, for which he received a significant reduction on his sentence.
(3)Whether EH had given truthful evidence was a matter for the jury.
(4)In considering EH's evidence, it was relevant to take into account that he was an admitted criminal with a personal interest in giving evidence against the appellant. Accordingly, his evidence should be approached with some caution.
(5)They should only take EH's evidence into account if, having carefully considered it and the circumstances in which it had been given, they were satisfied that it was truthful.
(6)In considering EH's evidence, the jury may take into account whether, and to what extent, the evidence was corroborated or supported by other evidence.
(7)There were five pieces of evidence that were capable of corroborating EH's evidence, set out in [35] above.
The terms of s 50 make it plain that the fact that EH was an accomplice does not, of itself, call for a corroboration warning. EH's evidence contained nothing, and, in particular, involved no hidden danger which the jury would not have appreciated without a warning, to call for a warning of the kind contemplated by s 50.[197] Nor was there anything in the circumstances of the case to require the giving of any instruction or warning or any comment, beyond what was said by the judge, in order to avoid a perceptible risk of a miscarriage of justice.[198]
[197] White [66], [78]; Moloney [11] - [12].
[198] Ruthsalz [181] and cases there footnoted.
There is no merit in ground 3. We would not grant leave to appeal on ground 3.
Ground 4: was the verdict unreasonable or unsupported by the evidence?
Appellant's submissions
This ground alleges that the jury's verdict was unreasonable and unsafe in that it could not be supported by the identification evidence. The appellant refers to Domican v The Queen to emphasise dangers with identification evidence, pointing to the following passage from R v Ong:[199]
The reliability of evidence identifying a voice depends upon the familiarity of the witness with the voice, the length and volume of the speech said to be that of the person identified and the time that has elapsed between the occasions on which the witness heard the voice to be identified and the voice of the person said to be the speaker.
[199] R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366 [20].
The appellant submits that the Crown relied upon EH to identify the voice Mr Anugoh designated as 'A' as his and relied upon Mr Anugoh's evidence that 'A' was the same person throughout the telephone conversations.[200]
[200] Appellant's submissions [71] - [73].
The appellant emphasises the following difficulty with EH's voice identification evidence:[201]
(1)EH gave evidence to the effect of Chinedu knowing the appellant by the name 'Emeka' before 23 June 2016, that is, the evidence outlined at [15](9) above.[202]
(2)In call '317', which took place on 7 July 2016, EH identified 'A' as the appellant and 'B' as Chinedu.[203] In that call, according to Mr Anugoh's transcription, 'B' says to 'A', 'You know that you have not told me your name. We are doing business together and you have not told me your name.'[204]
[201] Appellant's submissions [76] - [78].
[202] Appellant's submissions [76], referring to ts 198, 243.
[203] Appellant's submissions [77], referring to ts 252 - 256.
[204] Exhibit P3, BGB 68.
The appellant also points out that, although Mr Anugoh gave evidence that voices 'A', 'B' and 'C' belonged to the same persons throughout his transcript,[205] and that 'B' was Chinedu,[206] EH gave the following evidence:
(1)In call '65', in cross-examination and initially in re-examination, EH identified Chinedu as 'A' and the appellant as 'B'.[207]
(2)In call '71', EH gave evidence that he was 'C';[208] by contrast, EH said he was not involved in call '34' which took place between 'A' and 'C'.[209]
Disposition
[205] Appellant's submissions [73], [83], referring to ts 284, 288, 289, 417. See also item 6(c) of the appellant's response to the respondent's PD 7.4 schedule of evidence filed 4 June 2019.
[206] Appellant's submissions [84], referring to ts 399.
[207] Appellant's submissions [79] - [80], referring to ts 250 - 251, 265. See also item 6(b) of the appellant's response to the respondent's PD 7.4 schedule of evidence filed 4 June 2019.
[208] Appellant's submissions [81], referring to ts 216 - 217.
[209] Appellant's submissions [82], referring to ts 216.
The appellant's submissions in support of ground 4 are directed solely to the voice identification evidence given by EH. A ground that the verdict is unreasonable or cannot be supported having regard to the evidence must be evaluated by reference to the evidence as a whole, not solely by reference to a specific category of evidence. As is outlined above, the voice identification evidence given by EH was only one particular aspect of the evidence upon which the Crown relied. As explained below, other parts of the evidence provided a powerful circumstantial case against the appellant.
The principles governing a ground of appeal that the verdict is unreasonable and cannot be supported by the evidence are well known. They were recently summarised in Wells v The State of Western Australia[210] as follows:
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[210] Wells v The State of Western Australia [2017] WASCA 27 [13].
The Crown case against the appellant was, in some respects, circumstantial, relying upon the drawing of inferences against the appellant. The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in R v Baden‑Clay[211] as follows:
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.[212]
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.[213]
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable persons upon a consideration of all the facts in evidence.[214]
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.[215]
[211] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.
[212] R v Baden-Clay [46].
[213] R v Baden-Clay [46].
[214] R v Baden-Clay [47].
[215] R v Baden-Clay [47].
The fourth of these principles is significant for the resolution of this ground. When the evidence in this case is considered as a whole, it cannot be said that the jury must have had a reasonable doubt as to the appellant's guilt. To the contrary, for the reasons that follow, it was well and truly open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
As we have explained, voice identification was a subsidiary aspect of EH's evidence. He also gave evidence of a face‑to‑face conversation with the appellant the substance of which was consistent only with the appellant having been involved in the transporting of the container. Moreover, EH's evidence concerned numerous conversations, about the container, with a person who had been introduced (via telephone) to him as Emeka, and who he knew as Emeka. See the summary in [45] above. Viewing his evidence as a whole, there was no room for any contention that EH was honestly mistaken in these respects.
There was no room for doubt, and it was conceded by the defence at trial, that EH had telephone conversations with people concerning the transporting of the container, which had drugs stored in it. One of the people with whom EH spoke was Chinedu. The facts and circumstances established by the evidence revealed a compelling case that another of the people with whom EH spoke, in conducting the importation, was the appellant and that no other reasonable inference was open. Those facts and circumstances included the following:
(1)When the appellant was arrested and searched, he was found to be in possession of the red Nokia on which some of those telephone conversations had occurred.
(2)At the time of his arrest, the appellant was also in possession of the laptop on which was stored:
(a)Electronic documentation relating to the Customs clearance of the container, using the name of Kate Stone.
(b)A copy of a driver's licence in the name of, and including a photograph of, Kate Stone, which was consistent with what 'A' had told EH - see [15](9) above.
(c)The appellant's curriculum vitae, including a reference to experience in Customs matters.
(3)The Customs clearance documentation included the 256 number for Kate Stone. That number was attached to one of the sim cards of the red Nokia found in the appellant's possession.
(4)The container was delivered to, and remained at, a location in metropolitan Perth. Although the appellant lived in Victoria, the objective evidence established that he came to Perth from 1 July 2016 to 3 July 2016. That accords with the timing of when EH said he had met with the appellant in Perth.
(5)The call charge records established that the red Nokia was used in Perth during that period, and in Victoria before and after that period.
(6)Like the person who was ascribed the voice 'A' in the telephone calls, the appellant spoke Igbo, had lived in Malaysia, and had a wife and young child.
If otherwise unexplained, these aspects of the evidence, together with EH's evidence, were readily capable of satisfying the jury beyond reasonable doubt as to the appellant's guilt. The only evidence capable of explaining any of these aspects of the evidence, in a manner consistent with innocence, came from the appellant. As explained in [25] above, he gave evidence to the effect that KC owned and used the red Nokia and that the appellant had permitted KC to use the laptop. The jury, which had the advantage of seeing and hearing the appellant give his evidence, were entitled to take the view that the appellant's evidence as to the red Nokia and laptop was not credible and could be rejected beyond reasonable doubt.
The jury were not obliged to accept the appellant's evidence that he lent the laptop to KC for a long enough period for KC to have created all of the Customs documents. The jury were entitled to find that the appellant's evidence of the circumstances in which the red Nokia and the laptop were returned to him strained credulity beyond breaking point. On the appellant's version of events, no reason is apparent for KC's alleged return, to the appellant, of the laptop and red Nokia which KC had taken when he left. That is all the more so in relation to the red Nokia which, on the appellant's evidence, belonged to KC. Further, the appellant sought to explain the fact that the red Nokia was found in his car by his evidence that he put it there 'hoping that [KC] would call'.[216] Again, the jury were entitled to find that evidence incapable of belief.
[216] ts 633.
On the appellant's evidence, there was no apparent reason why, if the red Nokia belonged to KC, there would have been any contact saved in the name of 'KC' on it. Moreover, call charge records show that on 2 July 2016, there were several calls from the 606 number to the number, ending in 749, saved on the red Nokia under the contact 'KC'.[217] Further, in call '631', Chukwuma, which, on the appellant's evidence, would be KC, is spoken of in the third person. See [17] and [28] above.
[217] Exhibit P7, BGB 147; exhibit P43, BGB 249.
The specific points concerning the voice identification evidence made in the appellant's submissions cannot overcome the combined force of the circumstances outlined in [67] above and EH's evidence. Moreover, the appellant is not assisted by further evidence to which he points, including of a telecommunication officer that the 256 number was not associated with any IMEI number.[218] That evidence was given in respect of exhibit P4[219] and amounted to an acceptance that that record did not show an IMEI number.[220] That does not detract from exhibits P8[221] and P15 which record that the 256 number was attached to the IMEI number of a sim card found in the red Nokia.
[218] Item 8 of the appellant's response to the respondent's PD 7.4 schedule of evidence filed 29 May 2019.
[219] Exhibit P4, BGB 81.
[220] ts 442.
[221] Exhibit P8, BGB 182 - 184.
For all these reasons, there is no merit in ground 4.
Ground 5
Ground 5 alleges that defence counsel's failure to adduce evidence, or perhaps to make submissions, at trial gave rise to a miscarriage of justice and made the trial unfair.
The principles relevant to a ground of this kind were outlined in Huggins v The State of Western Australia.[222] Those principles include, relevantly to this case:
(1)An appellant who seeks to demonstrate that the conduct of counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged.[223]
(2)Given the nature of the complaint made in this case, in order to establish a miscarriage of justice, the appellant must establish two matters. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome.[224]
[222] Huggins [375] ‑ [400].
[223] Huggins [376].
[224] Huggins [381] - [382].
The appellant highlights that aspects of the defence case, and his evidence, at trial were that the red Nokia (1) belonged to KC; (2) was used by KC, and not himself, at the relevant time; and (3) was not taken by him to Perth when he travelled there from 1 to 3 July 2016.[225]
[225] Appellant's submissions [101], [105], [108], [111], referring to ts 616, 618, 641, 645, 651 ‑ 653.
The appellant relies on the evidence at trial of the flight reservation records of the appellant's flights from Perth to Melbourne and Melbourne to Perth.[226] The flight reservation records, relevantly, displayed:[227]
1.JQ-968 Fri, 01Jul16 MEL‑PER 22:50- 01:05+1
2.JQ-981 Sun, 03Jul16 PER-MEL 01:40- 07:15
In oral evidence at the trial, the appellant confirmed the Melbourne to Perth flight information.[228] The appellant did not give oral evidence concerning the Perth to Melbourne flight.
[226] Appellant's submissions [106] - [107], referring to ts 663 - 664; exhibit P23, BGB 190 ‑ 191.
[227] Exhibit P23, BGB 190 - 191.
[228] ts 663 - 664.
The appellant's submissions in support of ground 5 rely on call charge records of the 606 number showing phone calls made in Victoria on or around the dates on which the appellant travelled between Melbourne and Perth.[229] The call charge records were tendered in evidence at trial. The appellant appears to complain, by ground 5, that evidence of the transcribed interpretations of the content of these calls was not led at trial, although it was in the prosecution brief.[230]
[229] Appellant's submissions [103] - [104], appeal ts 28, referring to exhibit P7, BGB 144, 148.
[230] Appeal ts 28 - 29.
The central thrust of the appellant's submissions, as developed in oral argument, relates to the timing of his return on 3 July 2016 from Perth to Melbourne. He contends that this timing makes it impossible that he made calls shown as having been made on that day by the 606 number in Victoria. In this regard, he relies upon call charge records which, relevantly, provide:[231]
[231] Appellant's submissions [104], referring to exhibit P7, BGB 148.
| A Number | B Number | Date | Time | Duration | AB | IMEI | Location |
| (minutes) | |||||||
| 0469265606 | +60177639442 | 03/07/2016 | 12:55:10 | 3 | A | 359603059674940 | CAMP HILL |
| +60169724424 | 0469265606 | 03/07/2016 | 14:11:42 | 145 | B | 359603059674940 | WARRAGUL SOUTH |
| 0469265606 | 131 | 03/07/2016 | 16:18:12 | 38 | A | 359603059674940 | WARRAGUL SOUTH |
| 0469265606 | +60177639442 | 03/07/2016 | 18:11:21 | 61 | A | 359603059674940 | CAMP HILL |
The appellant submits that these records show calls being made from the red Nokia at those times at the Victorian locations of Camp Hill and Warragul South.[232] He submits that the flight reservation records show him leaving Perth on 3 July 2016 at 1.40 pm and only arriving in Melbourne at 7.15 pm.[233] The appellant submits that, on the basis of the flight reservation records, he could not have been the one using the red Nokia at these times because he had not yet returned to Victoria.[234] He submits that this undermines EH's identification evidence.[235] The appellant complains that the trial judge did not, in directing the jury, specifically draw upon the discrepancy that the above call charge records show a call from Victoria when the appellant was supposedly still in Perth; rather, the trial judge reminded the jury that the call charge records corresponded with the appellant's travel to Perth.[236] The appellant also complains of the failure of counsel to lead evidence of the interception of the 12.55 pm call on 3 July 2016,[237] by which is presumably meant a failure to adduce evidence of the interpretation of this call.
[232] Appellant's submissions [107].
[233] Appellant's submissions [106] - [107]. See, also, item 6 in the appellant's response to the respondent's PD 7.4 schedule of evidence filed 29 May 2019.
[234] See appellant's submissions [107], [110], appeal ts 29.
[235] Appeal ts 29.
[236] Appellant's submissions [110], referring to ts 758.
[237] Appellant's submissions [114], see also [115]. See exhibit P7, BGB 147 - 148.
At the hearing, the respondent conceded that the call charge records revealed an anomaly and, if accurate, meant that the appellant could not have made the calls in question.[238] However, the respondent subsequently withdrew that concession upon the court's invitation, to both parties, for submissions on whether the 3 July 2016 times in the flight reservation records were am times rather than pm times.[239]
[238] Appeal ts 38 - 39, 41 - 42.
[239] Respondent's supplementary submissions [1] - [3].
The appellant's submissions at [78] - [79] above are without substance. They are based upon a misreading of the flight reservation records. While the appellant submits that the records show him leaving Perth at 1.40 pm and arriving in Melbourne at 7.15 pm, they actually record a departure time of 1.40 am and an arrival time of 7.15 am. It is plain, for example in the reference to 22.50 on the departure leg, that the times are shown on a 24‑hour clock. That is consistent with the statement, on the same reservation summary, that the car hired in Perth was to be dropped off at 1.30 am on 3 July 2016.[240]
[240] Exhibit P23, BGB 191, 192.
Having arrived in Melbourne at 7.15 am, the making of calls in Victoria at 12.55 pm, and thereafter, gives rise to no inconsistency. There is no basis to suggest that a failure to adduce evidence of the interpretation of these calls, or to make submissions to the jury about them, affected the verdict or otherwise gave rise to any miscarriage of justice.
The appellant also points to call charge records proximate to the time of his travel on the first leg, from Melbourne to Perth, which, relevantly, provide:[241]
[241] Appellant's submissions [103], appeal ts 28, referring to exhibit P7, BGB 144.
| A Number | B Number | Date | Time | Duration | AB | IMEI | Location |
| 0432296453 | 0469265606 | 30/06/2016 | 21:24:09 | SMS | B | 359603059674940 | CAMP HILL |
| 0469265606 | 0432296453 | 30/06/2016 | 21:28:20 | SMS | A | 359603059674940 | WARRAGUL SOUTH |
| 0432296453 | 0469265606 | 30/06/2016 | 21:34:58 | SMS | B | 359603059674940 | CAMP HILL |
>
The appellant submits that these records show telephone calls being made from the red Nokia at the times shown on 30 June 2016 at the Victorian locations of Camp Hill and Warragul South.[242] The records show an exchange of SMS messages rather than telephone calls. In any event, the substance of the appellant's submissions in relation to these records is a reassertion that he did not make the telephone calls, having regard to his evidence at trial denying having done so.[243] The appellant falls well short of establishing any miscarriage of justice arising from these telephone communications, or from any failure to adduce evidence of the interpretations of them.
[242] Appellant's submissions [103].
[243] See appellant's submissions [113], referring to ts 648.
For these reasons, there is no merit in ground 5. We would refuse leave to appeal in respect of it.
Conclusion
For the above reasons, we would make the following orders:
1.Leave to appeal on ground 1 is granted.
2.Leave to appeal on grounds 2 - 5 is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech28 JUNE 2019
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