UMELOH v The Queen
[2004] WASCA 295
•8 DECEMBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: UMELOH -v- THE QUEEN [2004] WASCA 295
CORAM: TEMPLEMAN J
MCKECHNIE J
MCLURE J
HEARD: 22 OCTOBER 2004
DELIVERED : 8 DECEMBER 2004
FILE NO/S: CCA 75 of 2004
BETWEEN: FRANCIS CHUKWADI UMELOH
Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :LA JACKSON DCJ
Citation : THE QUEEN v FRANCIS CHUKWADI UMELOH
File No :IND 803 of 2002
Catchwords:
Criminal law - Federal offences - Direction as to attempt to commit drug offence - Whether sufficient burden of proof - Whether misdirection - Appeals and procedure - Extension of time - Lengthy delay
Legislation:
Criminal Code 1995 (Cth), s 11.1
Customs Act 1901 (Cth), s 233B
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant: Mr B S Hanbury
Respondent: Mr D W L Renton
Solicitors:
Applicant: Beau Hanbury
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Liberato v The Queen (1985) 159 CLR 507
Case(s) also cited:
Nil
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by McKechnie J.
I agree with his Honour's reasons and would add only this, in relation to the proposed appeal grounds 2 and 3.
I do not accept that the reference made by the learned trial Judge to "the middle ground" could be taken as a suggestion to the jury that they had to decide whether the applicant was guilty or innocent.
His Honour's remark about "the middle ground" was made very shortly after his Honour said:
"The onus or burden of proving all of the elements of the charge against the accused man rests on the Crown. That means it's for the Crown to prove the charge against the accused man. There is no onus on the accused man to prove his innocence or indeed to prove anything all. The onus or burden of proof never shifts to an accused person. It is a cardinal principle of our system of justice that a person is presumed to be innocent of any charge brought against him or against her unless and until that person by your verdict and your verdict alone is found to be guilty.
If therefore in your deliberations you find yourself asking has the accused proved this or proved that then you are asking the wrong question. An accused person needs prove nothing. An accused person doesn't even have to give evidence but where he does, as he did in this case, then that is evidence like all the rest of the evidence that you can take into account to decide whether the Crown has proved the charge. The second thing is that the standard of proof is a very high one; it is proof beyond reasonable doubt." (AB 189-190)
Put in that context, I consider that his Honour's reference to "the middle ground", although unconventional, did not detract from the clear (and correct) direction set out above. His Honour was, I think, using the expression in order to demonstrate to the jury the way in which the standard direction might work in practice.
I would also dismiss the application.
MCKECHNIE J: The applicant seeks an extension of time within which to appeal against his conviction. The applicant was convicted on 11 March 2003 but did not lodge an application for extension of time until
21 May 2004. The delay is largely unexplained and is very lengthy indeed. The applicant will need to show that there will be a miscarriage of justice if the extension is not granted.
The applicant was convicted after trial on an indictment that:
"On the 12th day of May 2001 at Perth in the State of Western Australia FRANCIS CHUKWADI UMELOH without reasonable excuse attempted to obtain possession of a prohibited import to which section 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of Heroin being not less than the trafficable quantity applicable to that narcotic substance, which had been imported into Australia…"
The prosecution case, which was very strong, in outline, is that a courier, one Mkwanazi, an employee of South African Airways, was approached by a person called Frank to become a drug courier. Mkwanazi wanted to meet the person with whom he would deal so, in late March 2001, he flew to Perth. The applicant flew from Sydney and met Mkwanazi.
In the week prior to 12 May 2001, Mkwanazi, who had returned to South Africa, equipped himself to carry drugs and flew into Perth International Airport on the morning of 12 May 2001. He was apprehended and a quantity of heroin was removed from his person and replaced with an inert substance. Mkwanazi agreed to co‑operate with police and as part of that co‑operation telephoned Frank who told him: "Wait in your room, you will be contacted". In due course, he was approached by a man called Seefis whom he met before returning to the applicant's motel room in Belmont. Mkwanazi was wired. A conversation between Mkwanazi and the applicant was recorded. Mkwanazi, who was not carrying any substance at that time, returned to his hotel room and, after taking the substituted drugs, returned to the applicant's hotel room where he was instructed to put the drugs in the bin in a white plastic shopping bag the applicant provided. The drugs were placed into a laundry cupboard. Shortly thereafter the police entered the applicant's room and located the three packages of inert substance.
The applicant, upon being confronted by the police, told them that he knew nothing about it, that he had a friend here and perhaps it was the friend's drugs.
The applicant gave evidence at trial denying all knowledge of the drugs. He explained a fingerprint on the plastic bag as having been placed there when he had bought some biscuits and drink from reception.
Against that brief outline I turn to the grounds of appeal. Although six grounds are listed in the application for leave to appeal grounds 3, 5 and 6 were not argued and are taken as abandoned. The balance of the grounds relate entirely to the trial Judge's directions to the jury.
Grounds 1 and 4 are interlinked and assert that the Judge did not give any proper directions as to the legal meaning of "attempt".
Counsel submitted that the jury should have been directed in terms of the Criminal Code (WA) s 4. However, that is plainly not correct. The trial was an exercise in federal jurisdiction and the provisions of the Criminal Code (1995) (Cth) applied. Section 11.1 defines "Attempt". By s 11.1(3):
"For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted."
Under the Criminal Code (Cth) s 3.2, in order for a person to be found guilty of committing an offence the following must be proved:
"(a)the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b)in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element."
A "fault element" may be intention, knowledge, recklessness or negligence (s 5.1).
The Judge dealt briefly with the question of attempt. He said:
"The crown case is that the accused had the substitute drugs in his possession and I will come to what possession means in a moment, but he is charged with attempting to obtain possession and there is no difficulty with that. What the crown says is that he thought that what he was actually getting was the drugs and therefore even though what he in fact got was the substituted drugs he is attempting to obtain the drugs and so the notion of attempt will not cause you any difficulty at all.
There is an issue about whether he is in possession, of course, and there are issues about other things and I will talk to you about those in a moment but the notion of the attempt part will not cause you any difficulty in this particular case."
Shortly thereafter the Judge read the indictment to the jury and then directed them in relation to possession in terms which are not challenged in this appeal. In the course of such direction he said:
"The next thing the crown has to prove is that the accused knew that it was drugs. In fact the packages did not contain heroin but rather a substitute so the real question is what did the accused believe was the situation? It is sufficient if the accused man knew or believed it was drugs or was likely to be drugs in the packages. Mere suspicion that it might possibly have been is not sufficient. It has to be a positive belief that it is drugs or that it is likely to be drugs."
A Judge's directions must be tailored to the circumstances of the case and the real issues that arise. In my opinion, the case did not call for an elaboration as to what is meant by the word "attempt". In the factual circumstances, the fault element to be established in the case of an attempt was identical to the fault element necessary to be established in relation to possession. The trial Judge's directions as to the fault element necessary to be established for possession have not been challenged. I do not consider that the Judge's direction in this respect led to a miscarriage of justice.
The other ground of appeal relates to the direction as to the burden of proof.
In argument, counsel pointed to a number of passages in the Judge's directions. I did not understand counsel to be suggesting that there was necessarily an error disclosed in the passages to which he referred but that the combination of the passages may have led to a miscarriage of justice.
The first passage to which counsel directed attention was the following:
"That means you don't simply have two choices. I mean, in this case you could accept all the crown witnesses say and all Mr Renton urges upon you and of course you would find the accused man to be guilty. Alternatively, if you accept all the accused man says and all Ms Lonsdale urges upon then of course you would find him to be not guilty. But there's a middle ground. You might have a reasonable doubt as to the guilt of the accused man and if that's the case then the proper verdict is one of not guilty."
Counsel then pointed to a passage where the Judge directed something which counsel at the trial had said to the jury as follows:
"One thing that Ms Lonsdale mentioned yesterday in relation to the trial process was to suggest that the crown had some sort of control over people who are on the jury and if anyone had a criminal record you would not be on a jury. That is a mistake. That's not right. Everyone has the same challenges. You heard people being challenged. The comment does not really matter, I don't think but it is, in fact, not correct."
Finally, counsel pointed to a passage where the Judge was advising the jury of the unanimity of verdict. He said:
"There is only the one count. With respect to that one count there are only two possible verdicts, either guilty or not guilty. There is no middle verdict available to you. It must be a unanimous verdict either way, either for guilty or for not guilty. It must be a verdict of all 12 of you."
In my opinion, the passages quoted separately and together do not give rise to a miscarriage of justice or other error.
The reference in the first comment to "middle verdict" is a shorthand Liberato direction: Liberato v The Queen (1985) 159 CLR 507. The Judge continued:
"Even if having heard him giving evidence you don't accept everything he says it doesn't automatically mean from that that he is to be found guilty because it's not for him to prove it's for the crown to prove. If when I'm speaking to you I refer to the crown satisfying you as to any fact always remember I am referring to satisfaction to this very high standard of proof; that is, beyond reasonable doubt."
The direction in respect to Liberato may have been more fully and expansively worded. However, it was adequate. More importantly, taken in combination with other directions which the Judge gave concerning the burden and standard of proof, from time to time, I consider the jury was
properly directed as to the legal requirements on the burden and standard of proof.
The second passage containing reference to counsel's comment to the jury as to challenges was about a discrete matter. Significantly, the matter did not relate at all to the evidence or counsel's submissions on the evidence. I do not consider that the direction watered down or diminished in any way the jury's consideration of defence counsel's other submissions.
The third comment about "middle verdict" is obviously directed only to the question of verdict and the need for unanimity. A jury is hardly likely to parse each sentence and relate it back to another. The subject matter of the Judge's direction at that stage was unanimity and that is the context in which a listener would have taken it, no other.
The applicant has failed to establish any miscarriage of justice and has not provided exceptional reasons why leave should otherwise be granted to extend time. I would therefore refuse leave to appeal.
MCLURE J: I have had the advantage of reading in draft the judgments of McKechnie and Templeman JJ. I agree with their reasons and have nothing to add.
1
2