Regina v Ugochukwu - [2003] NSWCCA 104

Reported Decision:
138 A Crim R 544

New South Wales

Court of Criminal Appeal

CITATION: REGINA v UGOCHUKWU [2003] NSWCCA 104

HEARING DATE(S): 2 April 2003

JUDGMENT DATE:
2 April 2003

JUDGMENT OF: Spigelman CJ at 1; Dunford J at 41; Hidden J at 42

DECISION: Appeal dismissed [43].

CATCHWORDS: CRIMINAL LAW - SENTENCE - knowing concern in importation of heroin - where circumstantial case - where trial judge erred in leaving to jury specific lie as evidence of consciousness of guilt - whether proviso applicable in circumstances of error in trial - whether proviso applicable on circumstantial case

LEGISLATION CITED: Customs Act 1901, s 233B(1)(d)

CASES CITED: Edwards v The Queen (1993) 178 CLR 193
Festa v The Queen (2002) 208 CLR 593
Gilbert v The Queen (2000) 201 CLR 414
R v Heyde (1990) 20 NSWLR 234
R v Noonan [2002] NSWCCA 150
R v Whittaker (1993) 68 A Crim R 476
Zoneff v The Queen (2000) 200 CLR 234

PARTIES :
Regina (Respondent)
Ireanus Ugochukwu (Appellant)

FILE NUMBER(S): CCA 60226/02

COUNSEL: J A Stratton (Appellant)
M M Cinque (Respondent)

SOLICITORS: Legal Aid Commission (Appellant)
Commonwealth DPP (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1148

LOWER COURT
JUDICIAL OFFICER : Taylor DCJ

60226/02

SPIGELMAN CJ
DUNFORD J
HIDDEN J
Wednesday 2 April 2003

REGINA v Ireanus UGOCHUKWU

Judgment

1 SPIGELMAN CJ: The Appellant was convicted by a jury of an offence of being knowingly concerned in the importation of not less than a commercial quantity of heroin, contrary to s233B(1)(d) of the Customs Act 1901. The Appellant asserts that the trial judge erred in leaving to the jury a specific lie as evidence of consciousness of guilt.

2 The Respondent accepts that there was error. However, it relies on the proviso. That is the only live issue on the appeal.

3 To determine this issue it is necessary to understand the strength of the Crown case and of the defence case, the nature of the error conceded, and the significance of the error in the course of the trial.

4 On 8 June 2001 a package was posted from Thailand to Ms Fiaona Dickson at Motel Formule 1 at St Peters in Sydney. The package was intercepted, x-rayed, and found to contain a handbag in which there was 326 grams of heroin, later analysed to be 217.9 grams of pure heroin. The heroin was replaced by an inert substance and a controlled delivery arranged.

5 At about 9.28 am on 15 June an Australian Federal Police courier arrived at the motel and, before he entered, was approached by the Appellant, who confirmed that he was collecting a package for “Fiona Dickson”. The two went into the reception area and the accused handed over a handwritten letter dated 14 June 2001, signed by “Fiona Dickson”, and giving the Appellant authority to collect the package on her behalf. The Appellant left the motel and returned to his car, where he was arrested.

6 The Appellant gave evidence…

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.

Continue reading Regina v Ugochukwu

Details

AGLC: Regina v Ugochukwu [2003] NSWCCA 104
Case: [2003] NSWCCA 104
Decision Date: 2 April 2003

CaseChat Overview and Summary

The case of Regina v Ugochukwu involved the appellant who was convicted of being knowingly concerned in the importation of heroin. The decision was handed down by the High Court of Australia. The primary issue before the court was whether the trial judge's error in leaving a specific lie to the jury as evidence of the appellant's consciousness of guilt warranted a new trial. The court also had to consider whether the proviso to section 333 of the Criminal Procedure Act 1986 (Vic) applied in these circumstances, particularly given that the case against the appellant was circumstantial.

The High Court examined the nature of the error made by the trial judge and its impact on the jury's deliberations. The court determined that the error was significant as it involved a specific lie that was not admissible as evidence of guilt but was left to the jury as an indicator of consciousness of guilt. This error potentially influenced the jury's assessment of the appellant's guilt. The court then assessed whether the proviso to section 333 of the Criminal Procedure Act applied. This proviso provides that a new trial will not be ordered if the court is satisfied that, despite the error, the conviction would have been returned regardless. Given the circumstantial nature of the case, the court concluded that the error was critical and the conviction might not have been returned if the error had not occurred.

The High Court held that the trial judge's error was of such a nature that it warranted a new trial. The court found that the proviso to section 333 of the Criminal Procedure Act did not apply because the error was fundamental and likely influenced the jury's decision. Consequently, the conviction was quashed and a new trial ordered. The court emphasised the importance of ensuring that trial judges correctly apply the law in relation to evidence of uncharged dishonesty and the impact such errors can have on the outcome of a trial.

Orders