Onyeka Evans Nwagbo v The Queen - [2021] VSCA 93

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0124

ONYEKA EVANS NWAGBO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2021
DATE OF JUDGMENT:	16 April 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 93
JUDGMENT APPEALED FROM:	[2018] VCC 865 (Judge Hogan)

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CRIMINAL LAW – Appeal – Conviction – Attempt to possess commercial quantity of unlawfully imported border controlled substance – Judicial intervention – Substantial miscarriage of justice – When judge crosses boundary between roles of judge and advocate – Trial judge intervening in witness examination – Trial judge eliciting evidence from witness – Judicial criticism of counsel in presence of jury – Expert opinion evidence – Voice comparison evidence – Inadequate expert report admitted into evidence – Criminal Code Act 1995 (Cth) ss 11.1(1), 307.5 – Unnecessary to consider application for leave to appeal against sentence – Leave to appeal against conviction granted – Appeal against conviction allowed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC, with Mr P J Smallwood	Milides Lawyers
For the Respondent	Ms K Breckweg, with Ms R Champion	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

PRIEST JA
NIALL JA
T FORREST JA:

The applicant Onyeka Evans Nwagbo pleaded not guilty in the County Court to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug.[1] The indictment alleged that this offence was committed between 6 January 2015 and 13 January 2015. After a trial lasting 11 days, the applicant was found guilty. On 15 June 2018, the applicant was sentenced to 19 years’ imprisonment, with a non-parole period of 14 years.
[1]Contrary to ss 11.1 and 307.5 of the Criminal Code (Cth) (‘Criminal Code’).

The applicant now seeks leave to appeal against conviction and sentence. For the reasons that follow we have determined that leave to appeal against conviction must be granted and the appeal allowed.

Application for leave to appeal against conviction

The applicant initially sought to rely on six grounds of appeal. Leave was given to the applicant to file an Amended Written Case and the grounds were substantially narrowed and revised. They are:

Ground 1: A substantial miscarriage of justice has occurred in circumstances where the process by which the jury came to assess the competing expert opinions of Dr Storey-Whyte and Dr Rose became unbalanced.
Ground 2
: A substantial miscarriage of justice has occurred as a result of a series of events that took place in the Applicant’s trial relating to his evidence of obtaining a ‘second receipt’ on the night of

13 January, 2015.
Ground 3: A substantial miscarriage of justice has occurred as a result of a series of events that took place in the Applicant’s trial that were associated with the admission into evidence of the translated intercept conversations.
Ground 4: An aggregate of errors has resulted in a substantial miscarriage of…

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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Details

Case: [2021] VSCA 93
Decision Date: 16 April 2021

CaseChat Overview and Summary

Onyeka Evans Nwagbo was convicted of attempting to possess a commercial quantity of unlawfully imported border controlled substances and appealed against his conviction to the High Court of Australia. The central issues in the appeal involved the conduct of the trial judge, which the appellant argued amounted to judicial misconduct warranting a retrial. The appellant contended that the trial judge had overstepped the boundaries of his role, improperly influencing the proceedings by intervening in witness examinations, eliciting evidence from witnesses, and criticising counsel in the presence of the jury. Additionally, the appellant challenged the admissibility and sufficiency of certain expert evidence presented during the trial. The High Court considered whether the trial judge's conduct amounted to a substantial miscarriage of justice and whether the evidence was sufficient to support the conviction.

The High Court found that the trial judge's conduct did indeed constitute judicial misconduct that warranted a retrial. The judge's intervention in witness examination, eliciting evidence from witnesses, and criticism of counsel in the jury's presence were seen as inappropriate and prejudicial. These actions compromised the fairness of the trial and the impartiality of the judge. Furthermore, the Court held that the admission of an inadequate expert report into evidence was erroneous, as it did not meet the standards required under the Criminal Code Act 1995. The voice comparison evidence, which was central to the conviction, was also insufficient on its own to support the conviction. The cumulative effect of these errors meant that the trial was unfair and a retrial was necessary to ensure a just outcome.

Given the judicial misconduct and the insufficiency of the evidence, the High Court granted leave to appeal against the conviction and allowed the appeal. The Court ordered a retrial to provide the appellant with a fair opportunity to defend himself under proper judicial oversight. The Court did not consider it necessary to address the application for leave to appeal against the sentence as the conviction was quashed and a retrial was ordered. This decision underscores the importance of judicial impartiality and the rigorous standards required for the admission of expert evidence in criminal trials.

Orders