R v Aroh - [2008] NZCA 457

IN THE COURT OF APPEAL OF NEW ZEALAND
CA106/07
CA113/07
[2008] NZCA 457
THE QUEEN
v
FRANK ONYEBU AROH
CAROLINE RANGIATA AROH
Hearing:25 September 2008

Court:O'Regan, Chisholm and Gendall JJ
Counsel:R M Mansfield and H Lawry for Frank Aroh

P H H Tomlinson for Caroline Aroh
J C Down for Crown

Judgment:5 November 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeals of both appellants against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by Chisholm J)
Table of Contents
Para No

Introduction  [1]
Background  [5]
Mr Aroh’s appeal against conviction  [20]
Breach of the Bill of Rights Act  [21]
           Failure to exclude hearsay email  [31]
           Evidence of Mr Njoku outside his area of expertise  [34]
           Fabricated evidence  [37]
           Inadequate directions about mental element of importing/  exporting  [49]
           Inadequate directions about similar fact evidence  [53]
           Prejudicial comments  [56]
           Undue pressure upon jury  [60]
           Summary  [69]
Mrs Aroh’s appeal against conviction  [70]
Failure to sever the trial  [71]
           Fabrication of evidence  [73]
           Error in Judge’s summing-up  [77]
           Summary  [82]
Sentence appeals  [83]
Mr Aroh  [88]
           Mrs Aroh  [98]
Result  [106]
Introduction
[1]       Following a five and a half week trial in the High Court at Auckland before Frater J and a jury, the appellant Frank Aroh was found guilty on five counts of importing cocaine, one of importing heroin, and one of attempting to export heroin. He was acquitted on a count of exporting heroin. Both appellants were found guilty on a joint count of exporting an unspecified Class A controlled drug. Frater J sentenced Mr Aroh to 17 years imprisonment with a minimum non-parole period of eight and a half years and Mrs Aroh to nine years imprisonment.
[2]       Mr Aroh appeals against conviction and sentence. His conviction appeal alleges a miscarriage of justice by virtue of eight matters which can be broadly summarised as: a breach of the New Zealand Bill of Rights Act 1990; issues arising from the Crown’s evidence; errors in the Judge’s summing-up; and the lateness of the hour at which the jury returned its verdicts (1.27am). The appeal against sentence alleges that the sentence is manifestly excessive.
[3]       Mrs Aroh also appeals against conviction and sentence. Her appeal against conviction relies on four grounds which she claims gave rise to a miscarriage of justice: failure to sever the count alleging joint offending by her and her husband from the remaining counts alleging offending by her husband alone; fabrication of Crown evidence; an error in the Judge’s summing-up; and the late hour to which the jury deliberated. Like her husband, Mrs Aroh alleges that her sentence is manifestly excessive.
[4]       Since these appeals were lodged there has been relatively slow progress towards a hearing. To a large extent this has arisen because of changes in the appellants’ legal representation and the fact that at times they have represented themselves. It was necessary for more than one fixture before this Court to be abandoned.
Background
[5]       After being born in Zimbabwe and raised in…

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 R v Aroh

Details

AGLC: R v Aroh [2008] NZCA 457
Case: [2008] NZCA 457
Decision Date: 5 November 2008

CaseChat Overview and Summary

Frank Aroh and his wife Caroline Aroh appealed against their convictions and sentences on various grounds. Mr Aroh's appeal against conviction alleged a breach of the New Zealand Bill of Rights Act, failure to exclude hearsay evidence, evidence of an interpreter outside his area of expertise, fabricated evidence, inadequate directions to the jury about the mental element of the charges, inadequate directions about similar fact evidence, prejudicial comments by the trial judge, and undue pressure on the jury. Mrs Aroh's appeal against conviction alleged failure to sever her trial, fabricated evidence, error in the judge's summing up, and undue pressure on the jury. Both appellants also appealed against their sentences as manifestly excessive. The Court of Appeal dismissed all appeals. It held that Mr Aroh's appeal against conviction failed because none of the grounds had merit. The evidence against Mrs Aroh was also overwhelming and her appeal against conviction failed. The sentences imposed on both appellants were not manifestly excessive and the appeals against sentence also failed.

Orders