Olua v R

Case [2014] NZCA 105 28 March 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA16/2013
[2014] NZCA 105

BETWEEN	DANIEL ONYEWUCHI OLUA Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2014
Court:	Randerson, Venning and Cooper JJ
Counsel:	D J Allan for Appellant M D Downs and G H Vear for Respondent
Judgment:	28 March 2014 at 10:30am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant Mr Olua was convicted after a jury trial in the District Court before Judge Perkins on three counts relating to the importation and possession for supply of methamphetamine. He was subsequently sentenced to 12 years imprisonment with a six year minimum non-parole period. He now appeals against both conviction and sentence.
The three specific counts were:
Count 1 – Mr Olua and a Mr Eze were jointly charged, together with a Ms Peneha, with importing methamphetamine on or about 5 May 2010.
Count 2 – Mr Olua and Mr Eze were charged with having methamphetamine in their possession for the purpose of sale or supply on or about 10 May 2010.
Count 3 – Mr Olua was charged with having methamphetamine in his possession for supply on or about 13 May 2010.
Mr Olua and Mr Eze were both convicted on the two joint charges and Mr Olua alone on the third.
The Crown alleged that Mr Olua and Mr Eze were either principals or parties to the importation of the drugs. The prosecution relied substantially on numerous text messages between Mr Eze and Ms Peneha and between the two accused. There was also evidence from Ms Peneha produced by way of written statement. She had pleaded guilty to her part in the importation and had been sentenced by the time of the trial involving Mr Olua and Mr Eze.[1] Finally, the Crown relied on evidence of sums of money found, telephone calls to Nigeria and South Africa and money transfers that were said to be consistent with drug offending.
[1]R v Peneha DC Manukau CRI-2010-092-7088, 28 October 2011.
At trial, Mr Olua and Mr Eze advanced “cut-throat” defences, each seeking to blame the other for the importation of the drugs. Each accused the other of lying about their involvement. Mr Olua’s defence was that he had no knowledge of or involvement in the offending and that the drugs found were not his. He said he was a businessman and explained the text messages by saying Mr Eze wanted him to value jewellery being imported by him (Mr Eze). Mr Eze admitted involvement with importing the package on 5 May 2010 but said he believed it contained jewellery, not drugs. He maintained he was acting under instructions from Mr Olua as the importer.
Counsel for Mr Eze sought to introduce a booklet of other text messages with a view to attacking the veracity of Mr Olua or establishing he had a propensity to engage in the importation and distribution of drugs.

Grounds for…

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 Olua v R

Details

AGLC: Olua v R [2014] NZCA 105
Case: [2014] NZCA 105
Decision Date: 28 March 2014 at 10:30am

CaseChat Overview and Summary

Daniel Onyewuchi Olua appeals against his conviction and sentence. He was convicted in the District Court on three counts relating to the importation and possession for supply of methamphetamine. He was sentenced to 12 years imprisonment with a minimum non-parole period of six years. The primary issues on appeal were the admissibility of text messages introduced by consent and the failure of the trial judge to give adequate directions to the jury about the use of those messages. The court dismissed the appeal against conviction and sentence.

The appellant and Eze were jointly charged with importing methamphetamine and with having methamphetamine in their possession for the purpose of sale or supply. The appellant was also charged with having methamphetamine in his possession for supply. The Crown alleged that the appellant and Eze were either principals or parties to the importation of the drugs. The prosecution relied substantially on numerous text messages between Eze and Peneha and between the two accused. There was also evidence from Peneha produced by way of written statement. Finally, the Crown relied on evidence of sums of money found, telephone calls to Nigeria and South Africa and money transfers that were said to be consistent with drug offending.

On or about 5 May 2010, a package arrived in New Zealand from South Africa. It was addressed to a Tracy Adigun, at an address in Otahuhu, Auckland. The package was intercepted by customs officers and was found to contain some 444 grams of methamphetamine. Between 1 and 10 May 2010, Eze made arrangements with Peneha for the collection and delivery of the package. It is evident from the text messages introduced by the Crown that Peneha was acting on instructions from Eze but it is also clear that during the same period, the appellant and Eze were in touch with each other. According to the Crown case, both men were aware of and took part in the importation.

On 10 May 2010, police and customs officers delivered the package to a female who gave it to Peneha. The police arrested Peneha who was found to be in possession of the package. She then cooperated with the police to arrange a meeting with Eze and he was arrested as well. Three days later, on 13 May 2010, police and customs officers executed a search warrant at the appellant’s address, a boarding house with shared facilities. The police found the appellant there in his underwear. A blue sock was located in the bathroom cabinet - the sock contained 132 grams of methamphetamine. In the appellant’s bedroom, a suitcase was found containing a second blue sock that appeared to match the sock found in the bathroom.

The court dismissed the appeal against conviction and sentence. The appeal against conviction was dismissed for the reasons given. The appeal against sentence was dismissed for the following reasons: the discount was appropriate given the longstanding approach that personal factors carry little weight in drug dealing offences and the imposition of the minimum period of imprisonment was appropriate.

Orders