Apostolakis v The Queen
[2012] NZCA 138
•4 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA407/2011 [2012] NZCA 138 |
| BETWEEN JOHN ANGELO APOSTOLAKIS |
| AND THE QUEEN |
| Hearing: 14 March 2012 |
| Court: O'Regan P, MacKenzie and Asher JJ |
| Counsel: D A Ewen and G Lowe for Appellant |
| Judgment: 4 April 2012 at 3.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Table of Contents
Para No
Introduction [1]
Verdict unreasonable [13]
The instruction sheet [14]
Other evidence [22]
Conclusion on reasonable verdict [24]
The limitation placed on the defence closing [25]
Misdirection on s 66(1) liability [31]
Misdirection as to the meaning of the instruction sheet [37]
Failure to edit the statement of Mr Kavaleros [46]
Result [49]
Introduction
The appellant, Mr Apostolakis, was one of a considerable number of accused who were charged following a Police investigation known as “Operation Pave”. Ultimately the trial to which this appeal relates proceeded against Mr Apostolakis and two other accused, Messrs Kavaleros and Bowyer.
Although there had been a considerable number of charges against Mr Apostolakis initially, at the conclusion of the trial, for various reasons that it is not necessary to traverse, Mr Apostolakis faced only one count of importing the Class B controlled drug MDMA (“ecstasy”) into Auckland on 27 January 2008. The particulars specified “a parcel addressed to Paul Walsh at an address 22/88 Nelson Street, Auckland”. The jury returned a verdict of guilty and this appeal is against his conviction.
The evidence against him was of a narrow compass. On 16 May 2007 a man purporting to be a Paul Walsh agreed to rent room 22 at 88 Nelson Street. A parcel arrived addressed to room 22 at 88 Nelson Street on 29 January 2008. That parcel contained the ecstasy.
There was no direct evidence that Mr Apostolakis was renting the room at the time or occupying it. The Crown did not argue that Mr Apostolakis was in fact Paul Walsh, and put the case on the basis that there was another person, Mr Matthew Frewer, who used the name Paul Walsh. He was said to be a leading figure in the importations before the Court.
The jury was informed that Mr Frewer had been convicted on a number of charges of supplying ecstasy and he was put forward as the central figure in the ring. He was importing large quantities of ecstasy tablets into New Zealand inside Harrods’ gift baskets. This was done by arranging to have the baskets delivered to rental addresses controlled by members of the group. Evidence was given at the trial that on four occasions baskets were delivered by courier to an address. Mr Frewer received the money paid for that ecstasy which he kept at the ASB Bank.
The Crown asserted that Mr Apostolakis was involved in the importation. It relied on two matters.
First, it relied on what was found when the Police carried out a covert search upon Mr Apostolakis’ address on 13 June 2008, some five months after the importation. The Police found a sheet of paper on which there were typed instructions (“the instruction sheet”), under the front passenger mat of the car being driven by Mr Apostolakis. The instruction sheet had on it Mr Apostolakis’ fingerprints. There was also an unsigned tenancy agreement between Paul Walsh as tenant and an unspecified person as sub-tenant. The instruction sheet stated:
Locate the advert in Trade and Exchange CITY : One bedroom apartment to let. Fully furnished. Nelson St $200pw. 021 025 95261. If you have missed the publication date you [can] re-run the ad online.
Place the advert sim into the handset. Call the number from a traceable phone and leave line open.
Dispose of advert sim.
Insert home sim. This is the contact number we have for you etc.
When you go to the apartment for the first time MAKE SURE YOU LEAVE CLOTHES THERE.
This is to give it the impression you are visiting it and staying there.
If ANYONE asks you are my cousin from Wellington and [that you] are going to be staying a while as I have had to return to Belgium as my dads wife has passed away!!!!
The entry to the main block is via a security code. The code is 381*. Do not forget to press the *. The landlady Noni has an office located next to the front door. If you are asked to pay money you can pop an envelope through the door. Just ensure you put Paul Walsh Apt 22 on it.
Advert Sim 02102595261 Home Sim 021 02595264
There was evidence that an advertisement appeared in the 18 October 2007 issue of Trade and Exchange which stated:
CITY 1 brm apartment to let fully furn. Nelson St
$200pw AkCBD(021)025-95261The Crown submitted to the jury that it could be inferred that Mr Apostolakis assisted in the importation by following the instruction and placing the advertisement in the Trade and Exchange. It was submitted that the intention to create the sub-tenancy in the advertisement was a subterfuge to try and disguise who was truly renting the property. Given that it could be inferred that Mr Apostolakis was the person who placed the advertisement, and that the subterfuge was intended to assist in the importation, it was argued that it could be inferred that Mr Apostolakis assisted in the importation.
The second matter relied on was evidence that Mr Apostolakis had in June 2008 met with Mr Frewer at a cafe in Auckland, who was seen to give a bag to Mr Apostolakis. Mr Frewer, who was under surveillance, had been earlier observed to visit the ASB and carry the bag out from the bank. There appeared to be something heavy inside the bag.
On 6 June and 8 June 2008 the Police executed covert searches on premises occupied by Mr Apostolakis, and located the bag in Mr Apostolakis’ room. They found an estimated US$150,000 and NZ$480,000 in cash in the bag. In the same search the Police found a scrap of paper that had a notation upon it which the Police, in evidence, linked back to one of their covert searches of Mr Frewer’s security deposit box. The meaning of the notation was not clear but it was argued that the notation’s relationship with the information in Mr Frewer’s security box established a suspicious link between Mr Apostolakis and Mr Frewer’s drug dealing enterprise.
Mr Ewen for Mr Apostolakis put forward a number of points on appeal. He argued that the verdict was unreasonable, that there were erroneous rulings, and that there were mistakes in the summing up.
Verdict unreasonable
We note at the outset that both Wylie J in a pretrial ruling[1] and Courtney J during the trial were faced with s 347 applications in which it was submitted that the evidence was insufficient for a reasonable jury to convict on the count against Mr Apostolakis. They each rejected the applications. Mr Ewen repeated to us the submissions he had previously made, and argued that the jury verdict was unreasonable. Under this head, he focused on two key areas of evidence, the instruction sheet and what was observed and found in June 2008.
The instruction sheet
[1] R v Kavaleros HC Auckland CRI-2009-404-384, 21 December 2010.
In a question trail distributed to the jury, Courtney J had set out the three elements of count 1. After asking the jury whether they were sure that a controlled drug was imported she asked:
2.Are you sure that Mr Apostolakis knew that a controlled drug (other than a drug specified in Part 6 of Schedule 3 Misuse of Drugs Act 1975) were to be imported into New Zealand? If No, find Not Guilty. If Yes, proceed to question 3.
3.Are you sure that before the drug became available in New Zealand Mr Apostolakis agreed to assist in the importation by placing the advertisement for the Nelson Street apartment in Trade & Exchange? If No, find Not Guilty. If Yes, find Guilty.
(Emphasis added).
In relation to question 3, the assisting by placing the advertisement, Mr Ewen submitted that the Crown argument that the directions in the instruction sheet were for the recipient to place the advertisement that appeared in the 18 October 2007 Trade and Exchange was flawed, as the instruction was not in fact to place an advertisement but rather an instruction to find an advertisement. He argued that the advertisement had been placed prior to the creation of the document, and at best the instruction sheet could be seen as directing the placing of a further advertisement.
This was not the way in which the Crown submitted to the jury the advertisement should be interpreted. The Crown submitted that it was an instruction to place an advertisement for the first time in Trade and Exchange.
We cannot accept Mr Ewen’s argument that the best interpretation of the instruction was to find an existing advertisement and perhaps place a second one. The advertisement commences “Locate the advert in Trade and Exchange”. The word “locate” does not in the context of this instruction mean “find”. Rather, it means “place”. This is apparent from the sentence following which gives directions as to what to do if the publication date is missed. There are instructions to place an advertisement giving the number associated with the advert SIM as the number for those responding to the advertisement to call as well an instruction to make a call to that number from a traceable number to create the impression that a person using the traceable number has responded to the advertisement.There are also instructions to leave clothes at the place and to give the impression that the recipient of the instruction is visiting and staying at the place, and other instructions as to what to do in the future.
Reading the actual words, and considering them in context, we are satisfied that the natural meaning of the instruction is to place an advertisement in the Trade and Exchange giving the number associated with the advert SIM as the contact number for respondents to the advertisement and to then create a false impression that someone has responded to the advertisement from a traceable number. The disposal of the advert SIM would have prevented any genuine inquiries about the proposed tenancy from being made successfully. The instructions can be interpreted as showing a plain intention to carry out a subterfuge, so that if there was an investigation, someone other than Paul Walsh or the occupant might appear to hold the tenancy.
In fact an advertisement that corresponded with the instructions was placed in the Trade and Exchange for 18 October 2007, and it contained the advertisement SIM number as instructed. There is no evidence of any advertisement in the months or year following 18 October 2007 to support the contention that the instruction was composed after 18 October 2007.
So we accept that on this evidence it was open for the jury to interpret the instruction sheet as an instruction by a person intending to carry out a subterfuge of some sort at the address at 22/88 Nelson Street in the days or weeks prior to the appearance of the advertisement on 18 October 2007. There was reason to believe that the person who received the instruction sheet indeed placed the advertisement which was published.
Mr Ewen emphasised that the instruction sheet was found in the car being used by Mr Apostolakis on 13 June 2008, some eight months after the advertisement was published. He argued that it was not possible to infer that an instruction sheet found so much later could relate back to the advertisement. However, the instruction sheet and tenancy agreement were found in a plastic folder under the mat beneath the passenger seat of the vehicle used by Mr Apostolakis. It was open to a jury to infer that it had been placed there months earlier and forgotten about. It is not entirely clear how the intended subterfuge would work, but this is not a critical factor. It is clear from the words of the instruction that some sort of subterfuge was intended and partially implemented by the placing of the advertisement. The fact that the instructions related to an address to which a box containing ecstasy was sent is enough to indicate that the subterfuge was intended to assist in the illegal importation.
Other evidence
Mr Ewen also argued in relation to question 2 that no jury could be reasonably sure that Mr Apostolakis knew that the controlled drug was to be imported into New Zealand. In this regard there was not only the evidence of the instruction in the instruction sheet and what could be seen as the implementation of the instruction by Mr Apostolakis. There was also the evidence of his later receipt of a very large sum of money from Mr Frewer which on its face was consistent with him being involved in a drug importation scheme, and the existence of a note with a notation that corresponded to a notation on an envelope found in Mr Frewer’s safe deposit box.
We also do not accept the submissions made by Mr Ewen that evidence that Mr Apostolakis may have occupied the apartment during 2008 weakened the argument that he placed the earlier advertisement. We do not see anything in any later occupation by him as inconsistent with him having placed the advertisement, and indeed the possibility that he was an actual occupant at a later point can, if anything, be seen as strengthening the Crown case as it showed later involvement by him in the running of the apartment to which the drugs were sent.
Conclusion on reasonable verdict
The instruction sheet was a strong piece of incriminating evidence. It was very unlikely that Mr Apostolakis would just happen to come across such an instruction sheet and retain it without knowing what it was or without having had any involvement in its implementation or drafting. The correlation of the instructions in the instruction sheet and the context of the advertisement indicated a direct role by the person who was in receipt of the instructions in placing the advertisement. If Mr Apostolakis was in knowing possession of the instruction sheet, this indicated that he was part of an endeavour to set up the sham tenancy. The purpose could be seen as diverting inquiries away from the real importer. When this circumstance is coupled with his later unexplained involvement in the receipt of the sums in excess of $650,000 from Mr Frewer, who was a principal connected to the import of ecstasy, and the notation linking Mr Apostolakis and Mr Frewer, there was sufficient material for a jury to conclude beyond reasonable doubt that Mr Apostolakis had been involved in or been a party to the importation of ecstasy. We conclude that the verdict was not unreasonable.
The limitation placed on the defence closing
Mr Ewen submitted that Courtney J should not have stopped him from putting it to the jury that there was no evidence that Mr Apostolakis was in New Zealand at the time when the advertisement was placed in the Trade and Exchange.
In Ruling (4) the Judge had accepted Mr Ewen’s submission that the Crown should not be permitted to advance evidence of Mr Apostolakis’ travel movements at around the time the advertisement was placed. This evidence was aimed at showing that he was in New Zealand at the relevant time. Such evidence had been available for some time, but the Judge accepted that it had not been disclosed to Mr Ewen until just before the close of the Crown case. However, the primary reason for her refusal to allow the evidence was not delay, but rather that it was not relevant. The Crown case would not be advanced by allowing the evidence.[2] She recorded that Mr Ewen wished to reserve his right to point to the lack of evidence as to Mr Apostolakis’ whereabouts in closing and observed that in her view it would not be open to Mr Ewen to suggest to the jury that the Crown had failed to prove that Mr Apostolakis was in New Zealand when the advertisement was placed, given that the date the advertisement was placed was unknown.
[2] R v Kavaleros HC Auckland CRI-2009-404-384, 10 June 2011 [Ruling (4)] at [10].
Courtney J returned to this issue when at the end of the trial Mr Ewen sought a ruling on whether he could close on the basis that count 1 must fail against Mr Apostolakis because there was no evidence as to where he was when the Trade and Exchange advertisement was placed.[3] In Ruling (7) she determined that such a submission would mislead the jury as such evidence was in fact available but had not been admitted at Mr Ewen’s request. If Mr Ewen did wish to close to the jury in that way, she stated that she would permit the Crown to adduce the travel movement evidence. Mr Ewen submitted that the defence case was unfairly prejudiced by this ruling.
[3] R v Kavaleros HC Auckland CRI-2009-404-384, 16 June 2011 [Ruling (7)].
We are unable to see how Mr Ewen’s case could have been advanced if he had been allowed to close to the jury in the way he wished. There was no evidence before the jury that the advertisement had to be placed by someone in New Zealand. Therefore, it was irrelevant whether or not Mr Apostolakis was in New Zealand or Australia when it was placed. Either way, the advertisement could have been placed by him. For this reason the Judge was correct in refusing to admit the Crown evidence as to his travel movements because it was irrelevant, whether or not there was a further reason not to admit it because of late notice. And for the same reason she rightly refused to allow Mr Ewen to comment on it.
For the evidence to have been relevant, Mr Ewen would have had to adduce evidence to show that the advertisement had to be placed from within New Zealand. Mr Ewen submits that there was evidence available to show that the advertisement had been placed online from an IP address, and that the person using a computer from that address must have been in New Zealand. If there was such evidence it seems likely that the correct ruling would then have been to permit the Crown to adduce the travel evidence, which would then have been relevant. That would have neutralised Mr Ewen’s submission in any event. We do not need to decide whether it was correct for the Judge to stop further reference by Mr Ewen in his closing to the lack of evidence because it might “mislead”. The determinative point is that the travel evidence was irrelevant.
Finally we note that the Judge in her summing up also set out in favourable terms Mr Ewen’s argument about the Crown not proving what had happened in relation to placing the advertisement. She stated:[4]
Mr Ewen, on the other hand, responds by saying that this instruction sheet was found some six months after the advertisement was placed. There is no evidence about what happened before the ad ran on the 18 October 2007. No evidence about what Mr Apostolakis was doing then. And simply insufficient information for you to conclude that he was the person who placed the advertisement.
This was a direction which put Mr Ewen’s submission to the jury as clearly and as strongly as it could be put. We conclude that the Judge dealt with this issue correctly.
Misdirection on s 66(1) liability
[4] At [77].
Mr Ewen argued that the Judge in her summing up in relation to Mr Apostolakis’ liability as a party under s 66(1)(b) created a very real risk that the jury would, because of references to a “joint enterprise”, reach a conclusion effectively on the basis of s 66(2) liability for participation in a joint enterprise.
Mr Ewen’s particular focus was question 2 of the question trail and the Judge’s summing up on this point:[5]
Question 2: Are you sure that Mr Apostolakis knew that a controlled drug would be imported into New Zealand? Now the starting point really for the Crown case on this charge is Mr Apostolakis’ involvement in the joint criminal enterprise during the time that Mr Frewer occupied it in the central role. Mr Wharepouri invited you to conclude that he was from two main pieces of evidence. And that was the documents found in his car with his fingerprints on it in June 2008 and what the police found in [the] motel room, the cash and the note that was in such similar terms to the note that had been found in the ASB bank vault. And so from that evidence, the Crown says you can conclude that Mr Apostolakis had connections with Mr Frewer and was part of the group importing and distributing Ecstasy.
[5] R v Kavaleros HC Auckland CRI-2009-404-384, 15 June 2011 at [73].
Question 2 related to Mr Apostolakis’ knowledge. In her direction on this the Judge referred the jury to two “main pieces” of evidence: what was found in the car and Mr Apostolakis’ involvement with the cash and the note. All the Judge was saying in this direction was that the Crown case that Mr Apostolakis knew a controlled drug would be imported depended on those two key pieces of evidence which indicated Mr Apostolakis’ involvement in a joint criminal enterprise. Quite plainly in this part of her directions she was referring to question 2 and the state of Mr Apostolakis’ knowledge and not party liability, and although use of the phrase “joint criminal enterprise” was better avoided, it was not a material misdirection. The party liability direction that followed in question 3 was unambiguously a s 66(1) direction.
Mr Ewen referred to references in the Crown closing to Mr Apostolakis being in a criminal enterprise with Mr Frewer, and references in the Judge’s summing up to another co-accused Mr Kavaleros being in a s 66(2) common enterprise. However, there was no danger of the jury being confused by the references. In relation to count 1 and Mr Apostolakis, the Judge’s directions were explicit and the question trail unambiguous. There was no risk of the jury embarking on a s 66(2) consideration in relation to Mr Apostolakis.
Mr Ewen was critical of the summing up in relation to s 66(2) liability as it related to Mr Kavaleros. However, whether or not there was any misdirection in relation to Mr Kavaleros was irrelevant; given the clear directions of the Judge in relation to Mr Apostolakis and the clear language of the question trail, there was no risk of some sort of transference of a s 66(2) approach to the jury’s consideration of Mr Apostolakis’ guilt. The question trail was in fact accepted as correct by Mr Ewen prior to the summing up.
We conclude that the Judge’s direction on Mr Apostolakis’ party liability was not in error.
Misdirection as to the meaning of the instruction sheet
As already outlined, there was a difference in the positions of Crown and defence as to the implications that could be drawn from the finding of the instruction sheet so far as it related to Mr Apostolakis. The Judge gave this direction to the jury:[6]
Well it is really for you to go back to those documents and think hard about what they mean. What were the circumstances that existed when the document had to have been created by reference to its contents? What does the plain wording of the document mean? It is completely for you to decide which interpretation you put on the documents and what meaning you give them. Now Mr Wharepouri’s submission was that, as I have said, the document was an instruction to place an advertisement and that remarkably an ad in identical terms was placed. And further, that Mr Apostolakis had all of the information that whoever was placing that ad would need to do so. And he submitted that if you take that evidence together with what happened later – the delivery to Nelson Street – and the reference to the trip to Belgium and so on associated with Nelson Street, you can be sure that Mr Apostolakis was the person that placed the ad.
[6] At [76].
Mr Ewen argued that the jury was being asked to draw inferences from the document, and that there should have been an inference warning and a particular warning that if either interpretation of the document was possible then the conclusion adverse to the Crown must be drawn.
We do not agree. The instruction sheet was relevant evidence in the same way a text message is relevant evidence. The jury needed to decide if possible what was meant. It had competing submissions as to meaning and as the Judge stated, it was necessary to decide on the correct interpretation that could be placed on the document. This is what the Judge invited the jury to do.
The meaning of the instruction sheet was a matter of fact. It was not an element of the offence that had to be proven beyond reasonable doubt. The Crown has no obligation to prove beyond reasonable doubt every fact which may be relevant to proof of each essential element. As was observed by this Court in Thomas v R:[7]
The facts ... are for the jury, and while the Judge may think it right to give the jury some assistance in dealing with the facts, it is no part of his duty to tell the jury that each item of evidence must be weighed by them separately, and that they must decide that it has been proved beyond reasonable doubt before they can use it in reaching their verdict. It is for the jury to determine for themselves which parts of the evidence they are prepared to accept or reject.
[7] Thomas v R [1972] NZLR 34 at 37.
It is not necessary therefore, when there are two possible conclusions equally available on a matter of fact, for a Judge to give the direction that the conclusion adverse to the Crown must be drawn.[8] That direction is reserved, rather, for the issue of whether the actual element to which the fact relates is proven. A jury is able to weigh facts in the balance when considering whether an element is proved, and that balancing can include an assessment of the strength of the proof of a fact, even if that fact is not proved beyond reasonable doubt.
[8]R v Puttick (1985) 1 CRNZ 644 (CA) at 647; followed in R v Hart [1986] 2 NZLR 408 (CA) at 413.
This is the way the Judge dealt with the position in her summing up. Having told the jury that it had to decide what interpretation it would put on the instruction sheet, she went on to put the respective positions of Crown and defence in relation to the meaning of the instruction sheet. It was up to the jury to form a view on that matter of fact and then to apply it with the other matters of fact to the consideration of whether the elements were proven beyond reasonable doubt.
The Judge then proceeded to deal with the elements of count 1. She had earlier given a very clear direction on inferences. Given the amount of material she had to cover in her summing up it would have been quite impractical for her to have repeated a general inference direction in relation to each element. The inferences direction that she had given earlier was entirely standard. In particular she stated to the jury that they could not draw an inference if they had a reasonable doubt as to a matter, because that would mean that they were guessing, and it would not be proper for them to do so.
We have no doubt that the jury would have had the inference direction in mind when it went on to consider the elements of count 1, in particular questions two and three. Moreover, the Judge stated in her summing up on count 1 that the jury had to be “sure” of the elements, in particular whether Mr Apostolakis knew a controlled drug was going to be imported into New Zealand and whether he helped in the importation by placing the advertisement.
We conclude that the Judge did not misdirect on the meaning of the instruction sheet or the inferences to be drawn.
Failure to edit the statement of Mr Kavaleros
Mr Kavaleros was a co-accused with Mr Apostolakis. He had given a full video statement in which he had referred frequently to Mr Apostolakis. However, although he had referred to Mr Apostolakis in relation to other imports with which, at the end of the trial, Mr Apostolakis was not charged, at no point did he implicate Mr Apostolakis in count 1. Nevertheless, Mr Ewen submitted that the video statement ought to have been edited to have the sound extinguished whenever there was a mention of Mr Apostolakis’ name.
To have done this would have been to have deprived Mr Kavaleros’ statement of much of its meaning and effect. Of course, Mr Kavaleros’ statement was not admissible against Mr Apostolakis. The Judge pointed this out in a strongly worded direction that was not criticised by Mr Ewen. But Mr Ewen argued that the prejudice could not be fixed.
We do not accept this submission. Any potential prejudice from Mr Kavaleros’ references to Mr Apostolakis had to be slight given the fact that Mr Kavaleros did not implicate Mr Apostolakis in the only charge outstanding against him, count 1. The Judge’s firm and clear direction that Mr Kavaleros’ statement must not be taken into account by the jury against Mr Apostolakis was in those circumstances sufficient to ensure there was no prejudice. The alternative of editing significant parts of his statement to stop the jury hearing reference to Mr Apostolakis’ name would have disproportionately hindered the prosecution against Mr Kavaleros.
Result
None of the appeal points have succeeded.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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