R v Akosa No. Sccrm-99-67 Judgment No. S447

R v AKOSA
[1999] SASC 447

Court of Criminal Appeal: Doyle CJ, Debelle and Wicks JJ

DOYLE CJ. I agree with the reasons given by Debelle J for the court’s decision to dismiss this appeal.
DEBELLE J. This is an appeal against conviction. The court dismissed the appeal for reasons to be given. These are the reasons for that decision.
The appellant was convicted after trial by jury of two counts of being knowingly concerned in the importation of heroin. He appeals against the convictions on the ground that the trial judge erred in admitting evidence of two witnesses for the prosecution. There is no other ground of appeal.
The appellant is a Nigerian. The prosecution case was that on 2 October 1997 he entered Australia at Perth using a false name, Richard Harry McIlroy. The appellant had been travelling in Asia. He had flown from Nigeria to Thailand, Thailand to Laos, Laos to Hanoi, and thence to Perth via Indonesia. He had a passport, visa and airline ticket as well as other identification in that name. After arriving in Australia, he resided at three different locations in Perth. On 12 November 1997 he flew to Sydney where he remained until 16 November. On 16 November he flew to Adelaide. On arriving in Adelaide he took accommodation at a backpackers hostel in Carrington Street. Four days later, on 20 November, he left that hostel. However, he left some of his luggage in a storage area at the hostel.
On 21 November 1997 the appellant took accommodation in the Austral Hotel in Rundle Street. On 26 November an employee of the Austral Hotel handed the appellant a card from Australia Post informing the appellant that a parcel was available for collection at the General Post Office. The parcel was addressed to “M C Harry” at the Austral Hotel. That name is obviously a corruption of the false name being used by the appellant. The appellant collected the parcel and returned to the hotel. Very shortly after he returned to the hotel he was arrested by officers of the Australian Federal Police. Police searched the hotel. They found three black folders in a sanitary disposal unit. The appellant admitted placing them there. He said he did so because he was scared of what the folders might contain.
The parcel which the appellant had collected had been intercepted on 22 November 1997 by Customs officers at the Airmail Transit Centre in Melbourne. As a result of an x-ray examination, the parcel was opened and found to contain several articles including three black A4 size folders. Secreted in the folders were 1.5 kilograms of heroin. The police removed most of the heroin and substituted another substance. The parcel was repackaged and taken to the General Post Office in Adelaide for delivery. Australia Post filled out the postal collection card which the appellant received at the Austral Hotel.
After his arrest, the appellant consented to an interview by police officers. He told them that he had two more black folders in the luggage he had left stored at the backpackers hostel in Carrington Street, Adelaide. Police officers went to the hostel and obtained a suitcase and travel bag belonging to the appellant. The suitcase contained two black folders which were similar in appearance to the three black folders which had been contained in the parcel collected by the appellant from the General Post Office. The two black folders also contained white powder which on analysis contained 726 grams of pure heroin. The combined quantity of heroin weighed 2.29 kilograms. Its potential street value was in excess of $1.5 million. The appellant told police that the two separate parcels containing the five folders had been sent to him from Thailand by a friend called “Charlie”.
In the course of the interview after his arrest, the appellant had told the police officers that the two folders in his suitcase had been sent to him a week before his arrest by Charlie. The appellant said that, when he received the parcel, he did not know what was inside it. The parcel had been addressed to him in the name “McIlroy”, the name on his passport. He told the police that, after ringing Charlie, he was told that the parcel was for a person in Sydney who would arrange a lawyer to assist the appellant in obtaining refugee status in Australia. He said the parcel had been delivered to him at the Backpackers hostel. It is not clear whether he meant a backpackers hostel in Adelaide or Perth. He said that he had received only two parcels from Charlie. He also told the police that Charlie had given him the passport in the name of McIlroy when the accused had seen Charlie in Thailand in August 1999. There was also evidence that on the day when the appellant collected the parcel from the General Post Office at Adelaide he had made three telephone calls to Thailand and had spoken to a person or persons there. The appellant admitted speaking to Charlie after collecting the parcel in Adelaide. He said that Charlie knew his mobile phone number and that he was staying at the Austral Hotel. The appellant also admitted that Charlie had sent him money. He had received in excess of $5,000 in United States dollars from Charlie.
The first count concerned the heroin in the two folders found in the appellant’s luggage in the hostel at Carrington Street. The second count concerned the heroin in the parcel collected by the appellant from the General Post Office at Adelaide. As the trial proceeded, it became common ground that the heroin had been imported into Australia. The issue for the jury was whether the appellant was knowingly concerned in that importation, that is to say, whether he knew that the two parcels contained heroin.
The prosecution case was strong. The appellant had entered Australia using a false identity. He had documents to establish his false identity in the form of a passport, visa, airline tickets and a New York driving licence. The passport had been supplied to him by the person called Charlie. Charlie was a central figure. He was in Thailand at all relevant times. He had given the false passport to the appellant in Thailand. He was sending the appellant money. He was the person whom the appellant had been ringing before collecting the parcel from the General Post Office in Adelaide. He was the person who had sent both parcels to the appellant. The appellant had admitted placing the three folders in the parcel he had collected at the General Post Office in Adelaide in the sanitary disposal unit in a lavatory at the Austral Hotel. The prosecution alleged that the appellant knew that the folders contained heroin and was seeking to secrete it before being searched by the police. In his interview with the police, the appellant had said that he did not know what the folders contained. If that were true, it is curious, to say the least, that he disposed of them in this way. His actions were not consistent with an innocent receipt. The appellant did not give evidence to explain his conduct.
In the course of its case, the prosecution had called two witnesses to prove the receipt by the appellant of parcels when staying in Perth. These are the witnesses whose evidence the appellant says was wrongly admitted. The first was a Ms Over. In October/November 1997 she was employed as a receptionist at a youth hostel in Perth. Her duties included registering guests, answering the telephone, sorting mail and giving mail to the guests when they came to collect it. She remembered that the appellant had stayed at the hostel under the name Richard McIlroy. Other evidence proved that he had stayed there from 4 November until 12 November 1997. Her evidence was that he had inquired on at least three occasions whether a parcel had arrived for him. The parcel did eventually arrive for him and she gave it to him. She described the parcel as being like a small box inside a post-pack which was about six inches long and four inches in diameter. She saw that the parcel was addressed to the appellant. There was no evidence as to the place whence the parcel had been sent.
The second witness was a Ms Jones, a visitor from the United Kingdom. In October/November 1997 she was residing at a backpackers hostel in Fremantle. While residing there, she met the appellant who was using the name Richard McIlroy. She recalled that he stayed there for about four weeks. Other evidence proved that the appellant was at this hostel from 9 October to 3 November 1997. The hostel had a mobile telephone. Calls to that telephone were answered by the manageress of the hostel who would then call out or look for the person to whom the call had been made. She recalled that on one occasion she heard the manageress pass on a message to the appellant that his brother had called from New York. She also recalled an occasion when a parcel was delivered to the appellant. She saw the parcel. It was addressed to the appellant. It was roughly the size of an A4 document. She believed that it had been sent from overseas. She was not cross-examined to suggest that her belief was wrong.
The appellant submits that the evidence lacked probative value in that there was nothing to show that the parcels contained heroin or that they had in fact been sent from outside Australia. It was submitted that the evidence was so highly prejudicial it ought not to have been admitted.
The submission must be rejected. The evidence was relevant and admissible. It was not until late in the trial that the question of importation ceased to be an issue. The objections to his evidence was signed before the trial had commenced. The question of importation was then an issue. When the evidence was led importation was still an issue. The prosectuion was entitled to lead evidence and invite the jury to infer that, while in Perth, the appellant had received at least two parcels from overseas and that one of those parcels contained the two folders found in the appellant’s luggage at the backpackers hostel in Adelaide. Furthermore, if the appellant had taken possession of the folders in Perth and had carried them with him first to Sydney and then to Adelaide, it was unlikely that he had remained ignorant of their contents. The appellant had admitted receiving the two folders in a parcel from Thailand. He had admitted that it had been sent by the person called Charlie. It was open to the prosecution to invite the jury to infer that the parcels had been sent to the appellant in Perth. There was no unfair prejudice caused by the admission of the evidence. It was for the jury to assess what reliance they would place upon it. For these reasons, the trial judge did not err in admitting the evidence.
Counsel for the appellant sought to contend that the admission of the evidence offended the principles in Harrimanv The Queen (1989) 167 CLR 590. However, the principle in that case has no application here. This was not a case of evidence of earlier criminal conduct. Instead, this was circumstantial evidence of a pattern of behaviour on the part of the appellant. The principles in Harriman have no application.
For these reasons, the appeal against conviction was dismissed.
WICKS J. I agree with the reasons given by Debelle J for the dismissal of this appeal.

[1999] SASC 447

21 October 1999