Udochukwa Prince Nwachukwu v The Queen
[2018] VSCA 117
•10 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0194
| UDOCHUKWA PRINCE NWACHUKWU | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 May 2018 |
| DATE OF JUDGMENT: | 10 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 117 |
| JUDGMENT APPEALED FROM: | DPP v Nwachukwu (Unreported, County Court of Victoria, Judge Lyon, 9 June 2017) |
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CRIMINAL LAW – Appeal – Conviction – Jury question – Jury question about evidence given – Judge’s answer to jury question – Whether judge’s answer erroneous – Whether judge’s answer foreclosed important part of defence case – Judge’s answer correctly summarised evidence – Judge’s answer correct – Not reasonably arguable that judge’s answer erroneous – Not reasonably arguable that judge’s answer foreclosed any aspect of defence case – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr R T Barry | Mr J Cain, Solicitor for Public Prosecutions |
TATE JA
BEACH JA
KYROU JA:
On 13 June 2017, following a six-day trial in the County Court, the applicant was convicted of one charge of attempting to possess a marketable quantity of a border controlled drug, namely methylamphetamine.[1] The applicant seeks leave to appeal against his conviction on the following ground:
A substantial miscarriage of justice has occurred because an important part of the defence case was foreclosed for consideration by the jury by the failure of the trial judge to tell the jury that there was not continuance surveillance of 23 Meade Way Sydenham on 2 November 2015 from 9:38 am until the arrest of the applicant.
[1]He was later sentenced for this offence and for an offence he had been found guilty of in an earlier trial (attempting to possess a commercial quantity of a border controlled drug, again methylamphetamine) to a total effective sentence of 13 years with a non-parole period of 9 years and 6 months: DPP v Nwachukwu (Unreported, County Court of Victoria, 17 August 2017, Judge Lyon).
The applicant’s ground relates to an answer given by the judge to a question asked by the jury, during the course of its deliberations, about whether there was continuous surveillance of 23 Meade Way on 2 November 2015. The applicant submitted that the judge should have answered that question by telling the jury that there was no evidence of continuous surveillance. The judge did not answer the question that way. He answered the question by reminding the jury of the evidence about the surveillance of 23 Meade Way on 2 November 2015.
For the reasons that follow, we have concluded that the judge was entirely correct in the answer he gave to the jury’s question, and that leave to appeal must be refused.
Circumstances
The Crown case was that the applicant and one Sao Ibrahim Kanneh (‘Kanneh’) were engaged in a joint criminal enterprise in relation to the attempt by them to possess a parcel (‘the consignment’) sent from China and containing 480.1 grams of pure methylamphetamine.
On 21 October 2015, Australian Border Force officers, working at the TNT mail facility in Brisbane, selected the consignment for further examination. Details on the consignment identified the consignor as a company with an address in China. The consignee was identified as ‘Barry Davies, 27 Hook Street, Inala QLD 4077 AUSTRALIA 614013947121’. The contents of the consignment were described as ‘indoor handicraft’.
The consignment contained one gold coloured Buddha statue, made of cement. The statue appeared to be broken into two different parts. Further examination by ABF officers revealed the statue was hollow in the centre with a white powdery substance secreted inside the hollow cavity. Presumptive testing of the white substance returned a positive result for amphetamine. Subsequent forensic testing by the National Measurement Institute confirmed the white powder to be methamphetamine of 80.3% purity. As we have said, the total pure net weight of methamphetamine contained within the consignment was 480.1 grams.
Australian Federal Police officers subsequently replaced the golden Buddha statue with a golden ‘Waving Cat’ statue of similar dimensions, in preparation for a controlled delivery.
On 27 October 2015, Kanneh, identifying himself as Barry Davies (‘Davies’), contacted TNT Express to request that the consignment be redirected to 1 McLeod Road, St Albans, Victoria. After notifying the AFP of the request, on 28 October 2015, a TNT representative called Davies on the phone number that formed part of the consignee’s details shown on the consignment. A voicemail was left confirming the new delivery address.
Later that same day (27 October) a man identifying himself as Davies called TNT Express and requested that the consignment be redirected to 23 Meade Way, Sydenham. He was informed that this redirection would involve a cost. The applicant lived at 54 Meade Way, Sydenham.
On 29 October 2015, a man again identifying himself as Davies contacted TNT to request a quote for the redirection to the Sydenham address. He was told the redirection would cost $83.48, and that he would need to provide his credit card details. Davies informed TNT that he would call back with the requested details within an hour. That afternoon, Davies called back and provided credit card details in order to pay for the consignment redirection.
On 30 October 2015, Davies contacted TNT to request an update on the status of the consignment. He provided a new contact telephone number and requested the delivery driver contact him on that mobile to advise of a delivery time. Later on the same day, Davies contacted TNT again – this time to request a depot collection rather than a delivery of the consignment. He was advised that a depot collection may not be possible as the consignment was already in transit. Later again that same day, Davies contacted TNT for an update on the expected delivery time. The delivery time was scheduled for 2 November 2015.
On 2 November 2015 at 9.38 am, an AFP surveillance team commenced surveillance in the vicinity of 23 Meade Way. At about 12:27 pm, an undercover police officer posing as a TNT delivery driver attempted to deliver the consignment to 23 Meade Way. The property had a ‘For Lease’ sign displayed in the front yard. A handwritten note was affixed to the front security door of the house.
The applicant’s house (at 54 Meade Way) was 80 metres from 23 Meade Way. The applicant’s BMW motor vehicle was parked on the nature strip outside his house and facing 23 Meade Way. From this vantage point, 23 Meade Way could be clearly observed.
Kanneh walked to the front door of 23 Meade Way and removed the handwritten note which was addressed to TNT.
Kanneh then approached the TNT delivery driver. Kanneh indicated that the parcel was his and that he had just been about to go and pay his bills. He identified himself as Barry Davies. When asked for identification, Kanneh stated that he did not have any as he had just moved into the house and he was not carrying his wallet. He advised the delivery driver that he and his girlfriend ‘Fiona Davies’ lived at 23 Meade Way.
The note, which was signed ‘Barry Davies’, authorised the delivery driver to leave the consignment at the front door of the address at 23 Meade Way. Kanneh told the delivery driver that he had written the note and had been speaking with Jeanelle at TNT. Kanneh signed for the consignment and accepted it.
The delivery driver was in his van and preparing to leave when Kanneh again approached him. Kanneh told the driver that he had left his house key in his friend’s car, and his friend would be here soon. The TNT van then left.
At 12:33 pm, Kanneh was observed walking with the consignment towards a vacant block that housed an electricity substation. At the same time, the applicant was seen walking from his house towards the vacant block. At 12:34 pm, both Kanneh and the applicant were observed walking together towards the vacant block.
A neighbour noticed two men at the vacant block. One of the men climbed the rear fence and appeared to be looking at the roof of the property behind the vacant block. Both men were then seen walking away from the block. The applicant and Kanneh were then seen walking back past 23 Meade Way in the direction of the applicant’s residence.
At 12:38 pm, AFP officers then identified themselves and shouted words to the effect ‘Police, get on the ground’. Kanneh stopped and complied with the direction. He was arrested and cautioned. The applicant failed to comply with the police direction, and commenced running towards a block of units on Tyson Way, Sydenham. He was pursued by police and subsequently apprehended after jumping a fence.
Police located the golden ‘Waving Cat’ statue from the consignment behind the electricity substation on the vacant block. The statue was broken open. The packaging for the consignment was located on the top of a carport roof located behind the vacant block.
The trial
The case against the applicant at trial was a circumstantial one. The evidence included evidence of the circumstances we have already described together with evidence about mobile phones and a note found in the applicant’s car. It is not necessary to describe all of this evidence. The applicant’s sole proposed ground of appeal concerns the evidence given about the surveillance of 23 Meade Way on the day the applicant was arrested.
The applicant did not give evidence at trial. His case was that he knew nothing about, and had no involvement with, the consignment. His version of events was contained in a lengthy record of interview in which he denied any wrongdoing. The applicant’s version, so far as it concerns his involvement in events on the day he was arrested, was encapsulated in his answer to question 93 of the record of interview as follows:
Q93.Okay, Prince,[2] I’m going to ask you some questions in relation to the importation of approximately one point five kilograms of methamphetamine and the attempt to possess that. What can you tell me about your involvement in today’s events?
AOkay. Ibrahim [Kanneh][3] is my friend. He is my really good friend. This morning he came to my house, so, very early morning. So he told me he is expecting something, to come, and he draw the address on the road. I don’t even know the number — the address. So he said that his sister live close to the house where he is going but he want to stay in my house, if I have anything to eat, I said yes. So I told him go inside and have something to eat. He went inside. He made noodle, he ate it, my wife made me a noodle. I was eating my own at my car because I wanted to clean my car. So Ibrahim left the first time, so I look for him. I didn’t see him. I walk to the place he said he is going to look for him. I didn’t see him. I come back home. In the next five minutes he came back to the house so he comes sit down with me where I was eating in my car so after, like, twenty minutes he walk out again. So I waited for him. He didn’t come back. So I also go back the same place he told me he was to look for him. I went to the house, he wasn’t there so I was surprised. You know, I was looking for him then I saw somebody hidden something under the house, like, beside the other house. I look. It was Ibrahim, he was coming out from the part of the — he was coming out. I was asking him, ‘What are you doing?’. He said, ‘I shouldn’t worry’, I should come with him, ‘Let’s go’. Okay, I was asking him, ‘Tell me the truth. What were you doing?’ you know I tell him because if he expecting something good I think he would do it in your house, ‘Why are you coming close to my place? Tell me exactly what you are doing?’. He told me to come with him, I should come. We are on the way walking back to my house then police were coming. I got scared, you know, then I run. So police, they got me and they handcuff me. So I never get to speak to Ibrahim again till now. Whatever he got, the thing, I didn’t see and I didn’t touch. I only looking for him because he’s my friend and I care for him too.
[2]Throughout the record of interview, the police refer to the applicant by his middle name, Prince.
[3]Throughout the record of interview, the applicant refers to Kanneh by his middle name, Ibrahim.
During the course of the trial, the applicant’s description of leaving his house on two occasions (rather than merely on one occasion) on 2 November 2015 assumed increasing significance.
The surveillance evidence
The evidence at trial was that there was surveillance of 23 Meade Way conducted by six AFP officers on 2 November 2015. The Crown tendered a surveillance running sheet which showed that surveillance commenced in the vicinity of 23 Meade Way at 9:38 am. The running sheet then contained entries at 9:46 am, 9:47 am and 12:23 pm.[4]
[4]There were subsequent entries made at 12:27 pm, 12:28 pm, 12:29 pm, 12:32 pm, 12:33 pm, 12:34 pm, 12:35 pm, 12:36 pm, 12:37 pm, 12:38 pm and 1:12 pm (when surveillance ceased). Nothing further needs to be said about these entries, however, because they are not relevant to the issues raised in this Court.
The entry for 9:38 am contains six AFP member numbers (being the numbers of the AFP members who participated in the surveillance) followed by their initials. Under the heading ‘Occurrences’, the entry then records:
Surveillance commenced in the vicinity of 23 Meade Way, Sydenham.
The entry for 9:46 am contains one member’s number (16413). The number has initials next to it. Under ‘Occurrences’, the entry provides:
A check of 54 Meade Way, Sydenham revealed:
Vehicle UKE133 was parked and unattended on the nature strip, and;
A white Toyota Hiace van bearing Victorian registration XYG279 (vehicle XYG279) was parked and unattended in the driveway.
Out of sight.
The entry for 9:47 am had the same member’s number (16413) and initials. Under ‘Occurrences’, it was recorded:
A check of 23 Meade Way, Sydenham revealed a white envelope with ‘TNT’ written on it, stuffed in the security door.
Out of sight.
As we have already observed, there was then no entry until 12:23 pm when the TNT van was observed in Meade Way.
By an agreement made between counsel at trial, only one of the six AFP members (federal agent Joshua Burnett) was called to give evidence about the surveillance of 23 Meade Way. Mr Burnett gave evidence that he was the designated note-taker who recorded the observations in the surveillance running sheet. The system was that other members of the surveillance team would radio in or notify their observations. The observations would be recorded, and each officer would later verify entries attributed to them and initial and sign off those entries as being a true record of what they had observed or noted.
Mr Burnett was asked in evidence-in-chief what the expression ‘out of sight’ meant. He said that it meant that the premises were no longer being observed.
Mr Burnett was only asked four questions in cross-examination. The questions were:
Mr Burnett, in terms of the log, this is the entirety of the surveillance observations for your team on that day, is that right? --- yes.
And the first sighting of Mr Nwachukwu occurred at 12:33 pm, is that right?---yes.
And the first sighting of Mr Nwachukwu in the company of unknown male 1 who we know as Mr Kanneh, occurs at 12:34, is that right? --- correct.
And at that stage Mr Kanneh is no longer carrying the package, is that right?
--- correct.
Nothing further.
The applicant’s record of interview did not specify with precision the time of the first occasion when the applicant left his house. From his answers to a number of questions, however, it would appear to have been some time after 10:00 am. Why the applicant’s trial counsel[5] sought to elicit from Mr Burnett that the applicant had not been seen before 12:33 pm (contrary to the applicant’s version in the record of interview) was not explained to us.
[5]Not counsel who appeared in this Court.
The final addresses
In final address, the prosecutor referred to the applicant’s version in the record of interview of having left his home on two occasions on 2 November 2015. The prosecutor submitted that, on the applicant’s version, the applicant would have left his home and walked down Meade Way towards 23 Meade Way at about 10:30 am.
After summarising the surveillance evidence, the prosecutor said:
There’s been no sighting of the accused man up until this time [12:27 pm]. No sighting of him walking from his house down to Meade Way, 23 Meade Way. It’s significant because you’ll remember his interview, he said he went there twice. He didn’t go there twice, he went there once.
So I suggest to you his interview is full of opportunistic comments and remarks manipulating some known facts with other fanciful nonsense. And this is one of them. He went there once. That’s a bit later.
Later, after again referring to the record of interview, the prosecutor said:
Remember I said this to you before, he said to the police he went there twice, that’s the first time he’s come back home. No evidence of that. Never went back home. He only went there once and he moved away from the electrical substation just to the corner of Meade and Tyson, then he went back.
Finally, the prosecutor said:
So generally speaking, I say his explanation of the events doesn’t sit comfortably, in fact is inconsistent with the objective independent evidence, as well as his own answers being internally inconsistent with other answers he’s given in this interview. As such, you should reject his account, in my submission to you, as to what happened on this particular day.
In his final address, the applicant’s trial counsel sought to deal with each of the pieces of circumstantial evidence relied upon by the Crown. Relevantly, so far as the applicant’s proposed ground of appeal is concerned, counsel said:
What about the surveillance evidence? I want to just briefly touch upon something that the learned prosecutor said about rejecting Mr Nwachukwu’s interview where he says that before he goes out the second time, which is when he says he meets up with Kanneh, that he’d gone the first time to see where it was and he says, ‘Well, that’s inconsistent with the surveillance evidence’.
If you have a look at the surveillance log, which is tab 3. If you look at p 2 behind that tab, 9:47, ‘A check of Meade Way, Sydenham revealed a white security envelope with “TNT” written on it, stuffed in the security door out of sight’. All right and the next entry on the next page is at 12:23. So there’s no evidence of what surveillance was occurring between those times and you might recall that [the prosecutor] asked the surveillance operative, Mr Burnett, about what, ‘Out of sight’ meant and he said, ‘What does — what does that mean, “Out of sight”’, and the answer that Mr Burnett gave was, ‘It means that the premises was no longer observed’. And so there’s really no evidence about what the surveillance unit was doing at that time or between those two times. We don’t know where they were, what they were looking at and so in my submission there’s really nothing in that point that the Crown seek to make.
Following the final addresses, the judge charged the jury. In the course of his charge, the judge reminded the jury of an earlier direction that they alone were the judges of the facts and they were ‘the only ones who can make a decision about the facts’. No complaint was made about the judge’s charge at trial, and no complaint was made in this Court.
The jury question
After the jury had been deliberating for a little over an hour, they asked three questions:
·Is surveillance of 23 Meade Way, Sydenham continuous from 9:38 am until the arrest?
·Can we have clarification of the term ‘Out of sight’?
·Are we able to ask why 54 Meade Way is recorded as being checked earlier that morning, specifically 8:06 and 9:46 am?
The jury’s questions provoked a substantial debate between the judge and counsel. Counsel for the applicant submitted that the jury should be told that there was no evidence that surveillance of 23 Meade Way was continuous.
During the debate, there was discussion about whether there was a gap in the evidence about the surveillance. Counsel for the applicant contended that the lack of recorded observations between 9:47 am and 12:23 pm required the judge to tell the jury that there was no evidence that the surveillance of 23 Meade Way was continuous during this period. Moreover, counsel submitted that the lack of any record as to how the note came to be ‘stuffed in the security door’ told against there being continuous surveillance.
The prosecutor, on the other hand, submitted that the evidence was that there was continuous surveillance from 9:38 am until surveillance ceased at 1:12 pm. With reference to the running sheet, the prosecutor said:
It never says that it [surveillance] ceases until it says all surveillance ceases.
At one point in the course of argument, the judge said that it was not clear that the surveillance was not continuous from 9:30 am. The judge then said that he was going to tell the jury that it was not clear what the situation was. At the conclusion of the discussion, the judge brought the jury back into court to answer the jury’s questions.
In answer to the first of the jury’s questions, the judge said:
The first question is this: ‘Is surveillance of 23 Meade Way, Sydenham continuous from 9:38 am until the arrest?’ I will answer that question by reference to the log and to the evidence given Mr Burnett, which appears at p 149 at lines 2 to 5.
So in the first instance, six officers of the AFP surveillance team at 9:38 am sign off that surveillance commenced in the vicinity of 23 Meade Way in Sydenham. All right, so that’s their commencement time. At 9:46 am one officer, that is 16413, does a check of 54 Meade Way, and a minute later that same officer, 16413, does a check of 23 Meade Way, Sydenham, and sees the white envelope with TNT written on it, stuffed in a security door. It is that officer who then uses the phrases ‘out of sight’.
The note keeper Mr Burnett was asked about the meaning of the word ‘out of sight’, and he was asked this question at p 149 line 2: ‘A check of 23 Meade Way, Sydenham revealed no vehicles at the location and a For Lease sign in the front yard, and then “out of sight”. What does that mean, “out of sight”?’ Answer: ‘It means that the premises was no longer being observed’. That entry is made by one officer and signed by one officer only. There are no other officers signing off.
From 12:23 all six officers make various observations as recorded between 12:23 and 1:12 pm. It is at 1:12 pm that all six officers say that surveillance ceased. The evidence may not be crystal clear on the point, but I make the point that all six officers sign on at 9:38 am. Their task was to surveil in the vicinity of 23 Meade Way. All six officers clock off at 1:12 pm when surveillance ceased. One officer made observations at 9:46 in the vicinity of 54 Meade Way, which was up the road. The same officer a minute later made an observation at 23 Meade Way, and then finished that observation with the words ‘out of sight’.
So I can't put it more clearly than that. Six officers clock on, one officer makes observations, one officer goes out of sight, six officers clock off hours later. That’s the extent of the evidence. So that may or may not answer your question, but I can't give you more than that.
The judge then gave answers to the second and third questions.[6] In respect of the second question (the request for clarification about the term ‘out of sight’), the judge referred to Mr Burnett’s evidence and said that the term would ‘seem to mean that the subject of the observation recorded in that log is no longer being observed by the officer that makes the observation’. This provoked a further question from the foreperson of the jury:
Oh, okay. Just in regards to the ‘out of sight’ meaning — I take that to also be about — if I can ask a stupid question — I take that to mean that includes both video surveillance and personal, ah, eyesight, can I say? Personal vision of a situation. All surveillance. I'm just a bit unsure, sorry, as to - unsure in regards to the five officers who haven't signed off, do I take it that they're observing but not recording anything as having been seen?
[6]It is not necessary to set out the judge’s answer to the third question.
The jury left the Court, and there was then further discussion between the judge and counsel. In the course of that discussion, the applicant’s trial counsel submitted that there was no evidence ‘as to where any of [the surveillance officers] were or what they were doing apart from what’s in the log’. Ultimately, the judge answered the jury’s additional question as follows:
Members of the jury, the answer to your question in relation to ‘out of sight’, you asked whether it is the ceasing of video and other observation, personal observations. The answer is this: The log says that at 9:38 am, six officers are in the vicinity making observations of 23 Meade Way. The log at 9:46 and 9:47 relates to one officer, that is officer 16413 who starts up the road at 54, makes observations, and then a minute later, it can reasonably be inferred, is moving down the road towards 23 and moves out of sight.
So if you follow what I'm saying, six clock on. Six are making observations. One is moving. That’s all it says. That’s the only thing that you can take from it, and it’s that one officer who moves out of sight. All right.
I was going to ask you if that’s a sufficient answer to your question, but that is the answer to your question.
Applicant’s submissions
The applicant submitted that the judge erred by not telling the jury that there was no continuance surveillance of 23 Meade Way between 9:38 am and the eventual arrest of the applicant. He submitted that ‘the answer to that question was clear: there was no evidence of continuous surveillance’.
The applicant contended that, save for the log entry at 9:47 am from an individual officer who was then ‘out of sight’, there was no evidence as to where any of the surveillance officers were during that period of time until the arrest of the applicant, or what any of them were doing. It was then submitted that the answer to the jury’s question ‘had to be precise and accurate’ and ‘in accordance with the evidence adduced at trial’ because of the applicant’s account of his movements in Meade Way on that morning in his record of interview ‘and in particular that he walked up 23 Meade Way and back to his home’. The answer given by the judge was submitted to be not supported by the running sheet.
Moreover, the judge’s answer was said to ‘unfairly provide a pathway for the jury to more readily reject [the applicant’s] account in his record of interview’. It did so because of the inconsistency of the applicant’s answers with the surveillance evidence if the surveillance was continuous.
Respondent’s submissions
Far from there being any miscarriage of justice, the respondent submitted that the judge’s answer to the jury’s question was unduly favourable to the applicant. The respondent submitted that, on the evidence, the judge should have answered ‘yes’ to the jury’s question as to whether the surveillance of 23 Meade Way was continuous from 9:38 am. The respondent submitted that the contrary proposition was not reasonably arguable.
Analysis
The surveillance running sheet did not expressly say that the surveillance of 23 Meade Way was continuous. The only surveillance officer who gave evidence, Mr Burnett, did not make any express statement about that issue either. No doubt, this was because Mr Burnett was not asked the direct question.
To the extent that the jury regarded the issue as one that was relevant to its deliberations, it was a question for the jury as to whether, on the whole of the evidence, it was prepared to infer that the surveillance was or was not continuous. It was not a matter for the judge to trample on this part of the jury’s field.
With respect, the judge’s answer to the jury’s question was impeccable. The judge summarised the relevant evidence for the jury, leaving it for the jury to determine what relevant factual inferences might be drawn. In our view, it would have been wrong for the judge to answer the question the way the applicant would have had the question answered. Equally, it would have been wrong for the judge to answer the question in the way contended for by the respondent.
There was no error made by the judge. No aspect of the defence case was ‘foreclosed for consideration by the jury’ as contended for in the applicant’s proposed ground of appeal. The contrary proposition is not reasonably arguable.
Conclusion
The application for leave to appeal will be refused.
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