Asadpour v The Queen - [2013] NZCA 348

IN THE COURT OF APPEAL OF NEW ZEALAND

CA810/2012
[2013] NZCA 348

BETWEEN	MAHMOUD ASADPOUR Appellant
AND	THE QUEEN Respondent

Hearing:	30 July 2013
Court:	Stevens, Panckhurst and Ronald Young JJ
Counsel:	H B Leabourn for Appellant B D Tantrum and M J Hammer for Respondent
Judgment:	8 August 2013 at 10.15 am

JUDGMENT OF THE COURT

AThe application to extend the time for appealing is granted.
BThe appeal against conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

Following a trial before Judge Hubble and a jury the appellant was convicted of two charges of importing the class A drug methamphetamine. He was sentenced to 12 and a half years’ imprisonment.[1]
[1]R v Asadpour DC Auckland CRI-2010-004-17375, 13 November 2012 [sentencing notes].
The appellant now appeals against his conviction on the basis that a miscarriage of justice arose from the Judge’s directions on the burden of proof. The appeal against sentence is advanced only to the extent that, if a miscarriage of justice is established and the convictions are overturned, the corresponding sentences must also be overturned.
The conviction appeal comes down to a relatively narrow point in the summing up. It is said that in six paragraphs of his directions to the jury the Judge effectively reversed the onus of proof. Additionally, it is said that the Judge confusingly introduced personal observations on the facts into the legal directions concerning onus of proof and the tripartite direction.[2]
[2]Mr Leabourn realistically did not advance either in the written or oral submissions the other ground of appeal against conviction mentioned in the notice of appeal.
The appeal was filed one day out of time. The application to extend the time for appealing is granted.

Factual background

On 24 September 2010 the appellant arrived at Auckland International Airport from Thailand. On the same day, the appellant’s co-offenders, Mr Slipkus and Mr Sliupas, also arrived at Auckland International Airport from Thailand via Kuala Lumpur. Mr Slipkus was found by a customs officer to have concealed internally 105 capsules containing 542.8 grams of methamphetamine. Mr Sliupas was found to have concealed internally 77 capsules containing 329.8 grams of methamphetamine.
The Crown case at trial was that the appellant’s role was that of an “overseer” or organiser of the importation of the methamphetamine. The appellant was an international traveller who had made two prior trips to Thailand in the same year. His job was to assemble the two mules, supervise the ingestion, weigh the methamphetamine, coordinate the flights, and book a hotel in New Zealand. He was responsible for keeping in touch with the mules during transit then meeting them in New Zealand. The Crown pointed in particular to a set of scales found in the appellant’s suitcase, which were said to be intended for use in weighing the methamphetamine in Thailand and in New Zealand.
The defence case was that the appellant was an “extremely unlucky victim of circumstance”.[3] He had never met, nor had any…

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 Asadpour v The Queen

Details

AGLC: Asadpour v The Queen [2013] NZCA 348
Case: [2013] NZCA 348
Decision Date: 8 August 2013 at 10.15 am

CaseChat Overview and Summary

Mahmoud Asadpour appeals against his conviction and sentence for drug importation, arguing that the trial judge misdirected the jury on the burden of proof, resulting in a miscarriage of justice. The Crown maintains the judge's directions were accurate and sufficient to prevent any misunderstanding by the jury. The Court of Appeal examines the judge's summing up, particularly the segments argued to be problematic by Asadpour's counsel. While acknowledging some infelicitous language in the summing up, the Court finds that the judge's overall directions on the burden of proof and standard of proof were correct and clear. The Court emphasises that the burden of proof remains with the prosecution throughout, and the jury must be satisfied beyond reasonable doubt of the accused's guilt. Despite the unorthodox phrasing in some parts of the summing up, the Court concludes that these did not lead the jury to believe the burden of proof had been reversed. Consequently, the appeal against both conviction and sentence is dismissed.

The Court's decision highlights the importance of clear and precise directions on the burden of proof and standard of proof in criminal trials. While the judge's summing up contained some unfortunate phrasing, the overall directions were sufficient to ensure the jury understood their role and the standard required for conviction. The Court's ruling underscores the necessity for appellate courts to consider the summing up in its entirety, rather than in isolated segments, to determine whether a miscarriage of justice has occurred.

Orders