Orji v R

Case [2013] NZCA 629 11 December 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA167/2012
[2013] NZCA 629

BETWEEN	JEFFERY UGOCHUKWU ORJI Appellant
AND	THE QUEEN Respondent

Hearing:	14 August 2013 (further submissions received 30 August 2013)
Court:	Ellen France, Rodney Hansen and Mallon JJ
Counsel:	C J Tennet for Appellant M J Lillico for Respondent
Judgment:	11 December 2013 at 10 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe application for leave to adduce new evidence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

Following trial before Judge McAuslan and a jury in the Papakura District Court, Mr Orji was convicted of eight counts of producing a passport knowing it to have been forged or to have been obtained fraudulently, contrary to s 142(1)(d)(ii) Immigration Act 1987 (the Act) and one count of having in his possession or under his control, a passport that he knew or had reason to suspect had been falsified or obtained by false representation, contrary to s 31(1)(f)(i) Passports Act 1992. He was sentenced to two years and three months’ imprisonment on each charge, to be served concurrently.
Mr Orji appeals against conviction. He relies on a multiplicity of grounds which he seeks to augment by introducing further evidence on appeal. Those grounds are:
(a)It was an abuse of process to charge Mr Orji under s 142(1)(d)(ii) of the Act for using a false passport when he first entered New Zealand as a refugee.
(b)There was a further abuse of process as a result of Immigration New Zealand (INZ) preventing Mr Orji from producing a new passport at his trial.
(c)A pre-trial decision to decline an application to admit hearsay evidence was erroneous.
(d)The trial Judge erred in refusing an application to adjourn the trial.
(e)The prosecution unfairly introduced unheralded evidence.
(f)The Judge failed to give appropriate directions in relation to expert evidence and inferences.

Factual background

Mr Orji is a Nigerian. On Christmas Day 2002, he entered New Zealand using a false South African passport in the name of Fhumulani Mudau.
On 23 January 2003, he made a claim to refugee status using the name Jeffery Ugochukwu Orji. His claim was declined.
In May 2003, Mr Orji met his wife, Kelesia Orji (nee Lapi). They married in August 2003.
Mr Orji left New Zealand for Fiji on 5 December 2003 using a Nigerian passport number A1823269. He returned to New Zealand on 25 December 2004. He entered using a visitor’s visa issued in Fiji and the same Nigerian passport.
On 1 September 2005, Mr Orji reported his Nigerian passport as lost. On 14 October 2005, he applied for residence in New Zealand. He used a Nigerian passport, number A3266978A, in the name of Jeffery Ugochukwu Orji.
On 18 December 2006 and on four subsequent occasions, the last on 22 October 2008, Mr Orji submitted work permit applications supported by Nigerian passport A3266978A. He also used the passport to support a visa/permit application on 27 March 2009.
On this last occasion,…

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 Orji v R

Details

AGLC: Orji v R [2013] NZCA 629
Case: [2013] NZCA 629
Decision Date: 11 December 2013 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Jeffery Ugochukwu Orji appealed against his conviction for producing and possessing forged passports, as well as his concurrent two-year and three-month imprisonment sentences for each charge. The appeal raised several grounds, including that it was an abuse of process to charge Mr Orji for using a false passport when he first entered New Zealand as a refugee. The Court found that there was no abuse of process because Mr Orji's refugee status had been determined, and the decision to charge him under the relevant provision was a legitimate exercise of prosecutorial discretion. Other grounds of appeal, such as the refusal to admit hearsay documents, the refusal to adjourn the trial, and the alleged unfair trial, were also dismissed. The Court concluded that none of the proposed new evidence met the test for admission and dismissed the application for leave to adduce further evidence on appeal.

Orders