R v Guo
[2009] NZCA 612
•21 December 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA417/2009
[2009] NZCA 612THE QUEEN
v
JIANYONG GUO
Hearing:2 November 2009
Court:William Young P, Chisholm and Priestley JJ
Counsel:C B Cato for Appellant
G H Allan for Crown
Judgment:21 December 2009 at 2.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
An appeal against conviction
[1] Following a two week trial in the District Court at Auckland before Judge Perkins and a jury, the appellant was found guilty of importing pseudoephedrine and possessing it for supply. He now appeals against conviction.
[2] The case primarily involves the importation into New Zealand in August 2006 of a container which was declared as containing, inter alia, granite. The consignee was NAK Group Ltd (NAK), a company operated by the appellant and his wife, Meihua Hong. Inside the container were a number of granite boxes which had been cleverly constructed to resemble sheets of granite lying side by side. Inside these boxes were large quantities of cigarettes and ContacNT capsules containing pseudoephedrine. A controlled delivery of the container (and its contents) was made and the appellant was subsequently found beside one of the granite boxes. He had broken into the box and he had removed from it a number of blister packets of ContacNT which he had placed in a bag.
[3] The appellant’s defence at trial was that he had simply been the innocent dupe of a casual acquaintance whom he knew as Ah Ming.
[4] Although the appellant was charged only in relation to the container which arrived in New Zealand in August 2006, there was a good deal of evidence before the jury as to an earlier container which had been imported in May 2006 and which, on the Crown case, contained contraband.
[5] We propose to address the appeal under the following headings:
(a)The factual background.
(b)The way the Judge dealt with the evidence of the May 2006 importation.
(c)The absence of a lies direction.
(d)The way in which the Judge summed up on the facts.
The factual background
The appellant
[6] The appellant and Ms Hong came to New Zealand in 2002. They previously lived in Fuzhou in China. He is a stone mason and a dealer in stone. He and Ms Hong traded through their company, NAK. Ms Hong (whose English is rather better than the appellant’s) seems to have been primarily involved with the administration and financial affairs of the company. They have three children. The oldest of these was around 16 in September 2006 and to some extent she assisted in the business (primarily, it appears, because of her fluency in English). The other two children were much younger and had been born after the appellant and Ms Hong came to New Zealand. The family lived in Henderson, Auckland. Also living with them in the house was a tenant.
[7] The appellant maintained links with China and had been there between March and May 2006.
The events giving rise to the charges
[8] In August 2006 NAK imported from Fuzhou a container which was declared to contain “granite, floor blocks and articles of stone”. Customs Service officers who x-rayed the container were suspicious as to its contents. When they opened the container, 16 wooden crates were located of which seven contained what appeared to be sheets of granite approximately 2.2 metres long, 1 metre high and 35 mm thick. Four of these crates were examined more closely. In them were granite boxes, the top lids of which had been glued to sarcophagus-shaped structures and grooved so as to resemble the top edges of sheets of granite lying on their sides. On the longitudinal sides of the boxes were genuine sheets of granite. Within the boxes were Chinese cigarettes (some of which had been packaged as Chinese tea) and a substantial quantity of ContacNT capsules. A total of 595,840 ContacNT capsules were present, each marked as containing 90mg of pseudoephedrine. The total value of the capsules was in the order of $1.5m – $3m.
[9] Ms Jing Lin, the customs agent used by NAK, was aware that the container was going to be inspected and advised the appellant’s wife. Later, after the container was released by customs, Jing Lin (who was aware that drugs had been found) requested prompt payment and sent her business partner to the appellant’s house to collect a cheque.
[10] The appellant, presumably aware of the inspection but unaware that contraband had been found, arranged for the container to be delivered to premises in New Lynn for unpacking. On 5 September 2006 the container was unpacked there by the appellant. On the same day, he arranged for the 16 wooden crates to be transported to his home address.
[11] When a party of police and customs officers arrived at his house the next morning, the appellant had been working on the first of the crates of granite (which happened to be one of the four which contained a granite box). He had removed the wood which made up the crate and also, on one side of the box, the genuine sheets of granite. In this way he had exposed the side of the box. He had then smashed a hole in the box and had taken out a number of blister sheets of ContacNT which he had placed in a black rubbish sack. On the arrival of the police and customs party, the appellant tried to run off but was soon caught and arrested. During the events which followed a woman who had apparently been hired to do some painting at the property arrived and was sent away by the police.
The search of the appellant’s house and property
[12] The subsequent search of the appellant’s house and property also resulted in the discovery of, inter alia:
(a)Granite pieces which were consistent with having been used in the assembly of boxes similar to those found in the August shipment. The relevant features were that some of the granite pieces had glue on them (and the granite boxes used in the August shipment had been assembled using glue). As well, some of the pieces had been cut in a way which was similar to the cutting of the granite which formed the lids of the boxes. On the other hand, the pieces of granite found at the property had not been grooved in the same fashion as the lids used for the August 2006 boxes.
(b)Broken down packing crates similar to those used in the August 2006 shipment and tagged with similar dockets.
(c)One blister packet of ContacNT and two capsules.
(d)A large quantity of cigarettes, some of which were the same kind (Ashima and Double Happiness) as those found in the August 2006 shipment.
(e)Chinese tea packaging which was of the same brand as Chinese tea wrappers in which some of the August 2006 shipment cigarettes were found.
Subsequent withdrawals of cash by Ms Hong
[13] Between 8 and 23 September 2006, Ms Hong cashed a significant number of NAK cheques which produced cash totalling $38,900. At the time the appellant was in custody on remand.
[14] The evidence as to this was not led as part of the Crown case but rather in the course of cross-examination of Ms Hong, who was a defence witness. Her explanation for these cash withdrawals was perhaps rather vague but she denied that the cash was referable to the container which was imported in August 2006.
The May 2006 shipment
[15] What was found at the appellant’s property suggested that NAK may have imported an earlier shipment of contraband goods which had been concealed in granite boxes. At trial as noted, there was a good deal of evidence about the May 2006 importation by NAK of another container into New Zealand. This had been declared as containing, inter alia, granite.
[16] The case for the Crown at trial was that the May 2006 container also held contraband goods, including cigarettes and pseudoephedrine. This contention was based primarily on the following considerations:
(a)The granite pieces found at the appellant’s property which could have been used in the construction of granite boxes similar to (but perhaps not quite as sophisticated as) those used in August 2006.
(b)The packing crates used in the August shipment appeared to be the same as those used in May and were tagged with dockets of the same sort.
(c)The May shipment came from Fuzhou, as did the August shipment.
(d)The same supplier was involved in both shipments.
(e)The Ashima and Double Happiness cigarettes and the Chinese tea packaging found at the house which matched exactly the brands of the cigarettes and associated packaging located in the granite boxes of the August 2006 shipment.
(f)The ContacNT blister pack and capsules found in the appellant’s house which also matched the contents of the granite boxes.
(g)Admissions made by the appellant of having smuggled cigarettes into New Zealand in the May shipment.
[17] It is appropriate to turn now to those admissions which formed part of the first explanation given by the appellant in relation to the August 2006 shipment.
The 8 September 2006 interview
[18] The appellant was interviewed by police on 8 September 2006. This interview took place in the Mount Eden Prison. Also present was the appellant’s lawyer and an interpreter. The interview took place at the request of the appellant.
[19] The entire interview was conducted through an interpreter who conversed with the appellant in Mandarin. A written record of the statement in question and answer form was taken. It was translated back to the appellant who then signed it after making a number of corrections.
[20] During the interview, the appellant denied knowledge of the pseudoephedrine and blamed the importation on another person whom he knew as “Ah Ming”.
[21] The appellant admitted that on an earlier occasion he had imported cigarettes from China which had been brought into New Zealand in a container. The appellant claimed to have known Ah Ming for about two years, having met him through work but said that they did not regularly keep in contact. He said that Ah Ming had once seen him smoking Chinese cigarettes and this led to a discussion about the practicalities of smuggling more cigarettes into New Zealand. Ah Ming asked him whether New Zealand Customs had checked the container and the appellant said apparently not. Some two months or so prior to the interview (presumably in July 2006) he had met Ah Ming at a shopping centre. Ah Ming asked him why he was not smoking Chinese cigarettes, to which he had responded that he did not have any containers arriving from China. To this Ah Ming replied “I can organise it for you”. The upshot, according to the appellant, was that he gave Ah Ming the details of NAK and particulars of the stone and ceramic tiles which should be imported. He asked for Double Happiness cigarettes. He said that he did not give Ah Ming any information about his supplier and that Ah Ming obtained the stone from a different supplier, possibly associated with relatives of his who had a stone business in China. He claimed he did not speak to Ah Ming again and had had nothing to do with the shipment until the container arrived at his address with a bill of lading in August 2006. He said that this was the first container which Ah Ming had been involved with.
[22] In this statement the appellant gave some detail as to how he had imported cigarettes in the earlier container. He organised the supply of cigarettes and “the factory” (presumably the stone supplier) had packed the cigarettes in the container. He admitted that the empty granite boxes found at the address were from the first shipment. The cigarettes that came in that shipment were Double Happiness and Ashima. He did not have many of them left as he had smoked “a lot” and given others away to friends. He claimed that he bought other cigarettes found at his house so that his wife could sell them but that he later found out they were “fake cigarettes”. (Indeed some of the cigarettes which were found at his house did turn out to be fakes.)
[23] The reason he knew where to start with the smashing of the granite boxes was that Ah Ming had told him that the cigarettes would be in “box number 1”. He intended to take 50 cartons of cigarettes and leave the rest for Ah Ming. The arrangement between him and Ah Ming was that he would pay Ah Ming the purchase price for the stone after it had arrived but no specific payment arrangements had been arranged.
[24] Understandably, the interviewer was interested in finding out whether there was tangible evidence of the existence of Ah Ming. When pressed as to this, the appellant indicated that Ah Ming’s telephone number would be recorded on “my phone”, which presumably referred to his Samsung, but he followed this assertion with a statement that it was on a Motorola phone which Ah Ming had given to him and which he, in turn, had given to his daughter as a toy. He was asked whether Ah Ming was a real name or a nickname, to which he replied “it’s a name people call him, no one asks him about his real name... maybe surname Zhang but I’m not sure”. He also gave the vague details of two people who might be able to contact Ah Ming, but when asked if he knew where Ah Ming lived, replied, “He seems to be living in the Eastern suburbs. I don’t know the exact place”.
[25] The questions and answers recorded in the statement form what appears to be a coherent narrative. And the interpreter who participated in the interview gave evidence at trial and asserted that the statement as recorded corresponded to what the appellant had said.
Evidence as to the existence of Ah Ming
[26] Leaving aside what the appellant had to say in his statement to the police and some evidence (to which we are about to refer) called on his behalf from Ms Hong and their daughter, no evidence was led at trial as to Ah Ming’s existence.
[27] The appellant’s wife told the jury of Ah Ming being mentioned prior to 6 September 2006 and both she and the daughter gave evidence of Ah Ming telephoning their house in October 2006 (at a time when the appellant was in custody on remand). The appellant’s wife told the jury that she did not see fit to mention this call to the police at the time as she assumed that the police were monitoring their calls. This explanation does not make a great deal of sense. It was very much in the interest of the appellant to be able to establish that there really was an Ah Ming. So even if Ms Hong believed that the police had been monitoring the calls, it would have been sensible for her to have alerted the police to the fact that a particular call at a particular time had been made by Ah Ming.
[28] There was no independent evidence to suggest that Ah Ming had had any involvement in respect of the August shipment.
[29] Found at the appellant’s house were a number of documents associated with the shipment (a fumigation certificate, an invoice and a bill of lading). These had been faxed by the consignor in China to NAK between 4 and 7 August 2006. From the New Zealand end, all arrangements with the customs agent were made by the appellant’s wife. It was the appellant’s wife who told Jing Lin that NAK was expecting a shipment from China and who requested her to arrange the customs clearance. She supplied Jing Lin with a copy of the bill of lading and all other relevant documents (including the fumigation certificate). According to Jing Lin she also had a telephone call from the appellant about when the shipment was arriving.
[30] The shipping documents do not record the cost of the goods imported in the container but they do indicate the cost of the freight. No documentation was produced as to how these costs were met or by whom but on the defence case it was presumably Ah Ming who had, one way or another, put in train the necessary arrangements. If so, this might have been expected to leave some trace of his existence.
[31] It will be recalled that the appellant suggested at the interview that Ah Ming’s number might be able to be located on his Samsung phone or the Motorola phone which Ah Ming had given to him. A Motorola phone was handed into the police a few days after the interview but without a SIM card. Found by the police in their 6 September 2006 search was the original box for this phone along with packaging for a pre-paid SIM card. Although the SIM card was missing the police were able to establish that the phone had been used with the SIM card which had come with the packaging but only between 3 and 12 June 2006. No explanation was offered by the appellant as to why this phone did not have a SIM card albeit that the appellant did say that he had never used it.
[32] At trial there was no evidence as to the whereabouts of the Samsung phone. At one stage it was suggested to the appellant in cross-examination that he had not supplied this phone to the police and he responded by saying that he thought that it had been seized by the police. Before us, Mr Cato criticised the prosecutor’s initial suggestion that the police did not have the phone. We were told from the bar that this was not so and that it had in fact been seized albeit that it too did not have a SIM card. The criticism of the prosecutor’s suggestion that the police did not have the phone, however, is of no moment in terms of the fairness of the trial as she later conceded in the course of her cross-examination that the police had the phone. What is important for present purposes is that no electronic records of Ah Ming’s existence were before the jury.
The appellant’s explanation as given at trial
[33] At trial the appellant maintained that Ah Ming was responsible for the August shipment but otherwise repudiated much of what he was recorded as having told the police in his interview. Errors in that statement were largely attributed to interpretation problems and/or confusion over personal pronouns.
[34] The appellant and his interpreter spoke between themselves in Mandarin, whereas the appellant’s first language is the local dialect of the area in China from which he comes. At trial, however, he gave evidence in Mandarin, through a Mandarin-speaking interpreter; this apparently without serious misunderstandings arising.
[35] Broadly, the appellant asserted that there had been something of mix-up over personal pronouns and that references to an earlier importation of cigarettes were intended by him to be references to what he had surmised were the actions of Ah Ming, rather than an acknowledgement of having been personally involved himself. The flavour of this explanation is captured by the following passages from the evidence in chief of the appellant:
Q Go a bit further down that page to the last question, you were asked, “How many times have you imported tobacco or cigarettes inside containers?” Your response that’s recorded is, “Just once before, this is the second time.” Is that according to your recollection an accurate record of what was said during your interview?
A No it was not accurately recorded.
Q What do you say you said in response to that question?
A Because at that time I was talking about things in relation to Ah Ming and what I said was also reflecting what Ah Ming did. I therefore speculated that was – what was done by Ah Ming at that time. Because the purpose of my making this statement was to convey that everything happened of Ah Ming so what was occupying my brain at the time was all Ah Ming.
...
Q If I can ask you about that [as to packing the May container boxes], the second question at page 6, “Who packed the container in China?” Your response is recorded as, “I have asked the factory who was responsible for the goods to put the cigarettes in there.” Is that the response that you believe you gave during your interview?”
A No. At least I was not talking about the things that happened myself. I accentuate that I’m being reporting the situations of Ah Ming.
[36] The appellant sought to explain his concession in the interview that “the empty granite boxes” found at his premises came from “the first shipment” in what seem to us to be two ways, either as a reference to the box that he had broken open on the morning of 6 September 2006 or alternatively as a reference to wooden dunnage found at the property (ie wooden boxes) associated with the earlier shipment, rather than to the pieces of granite.
[37] In other respects he claimed that the written statement was simply wrong. For instance he denied ever discussing who was to receive the cigarettes from the container or that he unpacked the first crate to get cigarettes.
[38] The appellant claimed that he had met Ah Ming in 2004 while working on a construction site and learnt that he too came from (or near) Fuzhou. While they were talking, they were both smoking Chinese cigarettes (in the case of the appellant, Double Happiness). The appellant said that he met Ah Ming by chance again, sometime later, around two or three months before 6 September. At this time, Ah Ming gave him the Motorola which later the appellant gave to his child as a toy. The context was that while they were talking he received a call on his Samsung phone which was dirty and not working well. This prompted Ah Ming to give him the Motorola (which was still in its box). He said that at that time he purchased some Ashima cigarettes from Ah Ming (some of which were later found at his house). Some (or perhaps all) of these cigarettes had come in Chinese tea packages of which one was found at his house on 6 September. As well, he and Ah Ming made an arrangement under which Ah Ming would import granite, concrete tiles and a Spring lantern from China for the appellant. Some of the granite was for his client Mrs Qin. The cigarettes which Ah Ming sold him came from Ah Ming’s car. Ah Ming also had a pencil and a notebook and the appellant was thus able to give him the details of the order (including reference codes for the granite) and all other particulars necessary for the order to be completed. No prices were fixed and no money was to be paid until after the goods arrived and in the case of the granite, sold.
[39] The appellant said that Ah Ming had suggested to him that he (ie Ah Ming) might also bring some Chinese cigarettes into New Zealand in the container but the appellant had rejected this suggestion. So on his evidence, the arrangement he entered into with Ah Ming was entirely innocent.
[40] According to the appellant, Ah Ming was responsible for the August shipment.
[41] The appellant said that he had an arrangement with a company called EMD which would store the granite and in effect sell it on behalf of NAK but that he also had some orders from other people (including Mrs Qin who had gone overseas by the time of trial) which he intended to supply from the August shipment. It was for the purpose of meeting those orders that he set about removing some of the granite slabs on the morning of 6 September. It was just a matter of timing (associated with delays which occurred in the unpacking and transport arrangements) that resulted in him arranging for all the crates to be sent to his house on 5 September. Otherwise some of the crates would have been sent on to EMD.
[42] The appellant had no idea that the container contained contraband and it was not until he opened the first packing case and had removed some of the sheets of granite that he realised that there was anything untoward. Out of curiosity, he smashed what turned out to be the first of the granite boxes to see what was inside. He found pseudoephedrine which he placed in a bag to keep out of the way of his youngest child, at which point the police and customs officers arrived. Because one of the police officers was armed, he was frightened, which is why he ran off.
[43] He had acquired the blister pack of ContacNT which was found at his home while in China. The cigarettes in his house had come from a number of sources: some he had acquired in China, others had been given to him by Ah Ming and others still had been purchased via the internet. The pieces of granite found around the property had not been used in the construction of granite boxes. Rather they represented what was left over from the construction of barbeque tops or flawed granite or samples which had come from China. As we understand his evidence, he claimed that the pieces of granite which had glue on them had arrived in that state from China.
The way the Judge dealt with the evidence of the May 2006 importation
[44] Some of the grounds of appeal argued by Mr Cato focused on the way in which the Judge dealt with the evidence of the May 2006 importation.
[45] The Judge’s directions to the jury on this aspect of the case were given in the context of his more general directions as to circumstantial evidence (which included the strands of a rope analogy) and as part of his general analysis of the facts. What the Judge had to say on the facts is set out in full in the appendix to this judgment and we will revert to it later. For present purposes, and despite the repetition, we think it right to set out here what the Judge had to say about the May importation:
[58] There is the evidence of the cigarettes and the one blister pack of Contac NT that were lying around in the grounds of the property, and the blister pack found inside. Either the cigarettes were previously imported or they were acquired by the accused, as he says, on the Internet.
[59] Contact NT (sic) appears to be a drug commonly available in China. You are not allowed to sell it here without prescription. The blister pack may have been left there in innocent circumstances or it may not, it is a matter for you to decide.
[60] Of course do not forget that even though there has been this evidence of the cigarettes the accused is not charged with anything relating to cigarettes. The Crown has put that evidence in because of the nature of the contents in the crates on this occasion, and in particular that some of the cigarettes found in the crates were the same brand as the cigarettes that were found in the house.
[61] So the surrounding evidence is part of the overall narrative of events which you need to consider and take into account. There is also the evidence of the pieces of granite lying around the yard, similar in profile to the lids on the hidden compartments on this particular occasion.
[62] There is also evidence of glue on some of the pieces and you will decide whether you accept that the accused created these in making up a barbecue, as he says, or whether it is evidence of a similar previous importation.
[63] Even if there has been an importation of goods in a secret compartment previously that does not of itself prove that the accused has previously imported drugs. Nor does it conclusively prove that he knew that there were drugs in the crates on this occasion.
[64] This evidence of the granite outside is just one of the strands in the circumstantial part of the Crown’s case for you to consider and as I have said it is a matter for you to decide. It may prove nothing in your minds, in which case you will simply disregard it.
[46] Mr Cato, for the appellant, was critical of the absolute manner in which the Judge referred to the pieces of granite located at the residence as being consistent with an earlier importation. He submitted that the assumption that the granite was similar to that found in the August shipment was “tenuous” and he contended that the Judge should have directed the jury not to draw an inference from the existence of the other pieces of granite that the appellant had previously used a similar importation method. In the alternative, if the jury were entitled to consider the evidence then Mr Cato submitted that:
... the Jury should have been directed that they could take into account [the existence of other granite] as a circumstance only if they were clearly satisfied that Guo had used a similar method of importation involving a compartment or tomb on a previous occasion.
[47] Mr Cato also complained about the evidence of the single ContacNT packet which was found at the appellant’s house on 6 September. He complained that this was so equivocal as to have no probative value as the appellant may have had it for medicinal purposes.
[48] We do not accept these complaints.
[49] It is elementary that the standard of proof in a criminal case applies to the end result which the jury must reach, and not the individual elements of each strand of the evidence, see R v Thomas [1972] NZLR 34 (CA) and R v Puttick (1985) 1 CRNZ 644 (CA). This approach applies to similar fact (or propensity) evidence, see the decisions of this Court in R v Sanders [2001] 1 NZLR 257 and R v Degnan [2001] 1 NZLR 280. Although Mr Cato sought to justify his argument on the basis of Australian authority, the position reached by the High Court of Australia in Shepherd v R (1990) 170 CLR 573 broadly accords with the New Zealand position.
[50] The Bayesian logic which underpins the probative force of circumstantial evidence is too complex for judges to explain to juries in any detail and in most circumstances the strands of a rope analogy as employed by the judge is sufficient. On the basis of the approach in Thomas and in accord with what is implicit in the strands of a rope analogy, each individual component of the relevant circumstances is required to be assessed not just on its own, but also in the context of the case as a whole (including the circumstances relied on by the defence). So, from the point of view of the jury, there was no need to make a specific and stand-alone finding based on the evidence referred to above at [16] that the appellant had smuggled goods into New Zealand in May 2006. Approaching that issue on a stand-alone basis would have been illogical because the more direct evidence relating to what happened in August and September 2006 was probative of what had happened in May. What was required of the jury was a holistic finding, based on the evidence as a whole, in relation to the events of August and September 2006.
[51] We accept that the Judge’s approach to the significance of the May shipment was not very analytical. Indeed, his piecemeal discussion of the evidence associated with the May shipment gave the jury little assistance as to its cogency in the context of the case as a whole. This, however, was very much to the advantage rather than the disadvantage of the appellant.
[52] Notwithstanding the holistic nature of the overall evaluative exercise which was required of the jury, the reality is that the stronger the probability that the May shipment contained contraband, the stronger the case against the appellant. The factors referred to above at [16] certainly suggest that goods had been smuggled into New Zealand in May 2006 using essentially the same technique as was employed in August, albeit that the granite boxes may not have been quite as sophisticated. It will be recalled that at trial the appellant denied that the May shipment contained contraband. As well, neither in his evidence at trial nor in his police statement, did he claim that Ah Ming had been involved with that shipment. So if the jury could be satisfied that the May 2006 shipment contained contraband goods concealed in granite boxes, the appellant’s attribution to Ah Ming of responsibility for the August shipment (in which the same technique was used) involved a coincidence of truly heroic proportions.
[53] The truth is that the evidence as to the May 2006 importation was extremely cogent and, in reality, far more cogent than the rather general directions of the Judge suggested. In those circumstances, we see no prejudice to the appellant arising out of the way in which the Judge directed the jury on this aspect of the case.
The absence of a lies direction
[54] It will be recalled that in the police interview the appellant said that the phone number of Ah Ming was stored on “my phone” and this was followed by a statement that it was on the Motorola phone used by his daughter as a toy, a phone which he claimed had been supplied by Ah Ming. Given that he was making his statement through an interpreter, some element of confusion in what he said or meant is possible. So it is possible that what he actually intended to say was not recorded with complete accuracy. On the other hand, if Ah Ming really existed, electronic traces of his existence could be expected to be able to be located on one or other of the two cellphones which were mentioned.
[55] The Motorola phone which the appellant claimed had been supplied by Ah Ming was given to the police by the appellant’s counsel after the interview. By this stage the SIM card was no longer in the Motorola phone. The police however were able to establish that the phone had been used (between 3 and 12 June 2006) and that the number allocated to the phone matched the number recorded in prepaid SIM card packaging found in the appellant’s garage. This was all a bit awkward for the defence case. On the appellant’s evidence, he never used the Motorola cellphone. So the calls on it which were made between 3 and 12 June must have been made by Ah Ming. There is nothing in the explanations given by the appellant about the phone to suggest that Ah Ming took the SIM card out of it before handing it to the appellant. And if he had, there is no obvious explanation for the pre-paid SIM card packaging being located at the appellant’s house. The appellant likewise gave no explanation for the removal of the SIM card. As well, if Ah Ming had been using the cellphone (and someone certainly had been between 3 and 12 June 2006) it is unclear why the phone would still be in its box when he allegedly gave it to the appellant.
[56] For these reasons, there was a reasonable basis for the Crown to contend that the appellant’s contention that Ah Ming had given him the cell phone was a lie. And indeed at trial, the case for the Crown was that the appellant had provided the Motorola phone in an attempt to lend some credence to the Ah Ming narrative first having ensured that the SIM card was removed. Unfortunately and awkwardly, however, when this argument was developed by the prosecutor she came to focus on what we regard as a red-herring.
[57] The problem arose in this way.
[58] During his evidence in chief, the appellant explained how he came into possession of the Motorola phone:
Q. How did you come into possession of that mobile phone Mr Guo?
A. When at Mt Wellington [ie at the last meeting with Ah Ming] I received the phone from a client and the phone itself was dirty because I used at the site and it didn’t have good contact and the signal was poor. Then he said, “I will give you a phone” and then he gave me this phone set. When he gave me this phone it was quite new and the packaging, the box was there as well. However it had been opened.
(Emphasis added.)
Obviously there is an element of linguistic ambiguity as to whether the “he” denoted the “client” or Ah Ming. Logically, however, the appellant must have meant Ah Ming. And indeed, shortly afterwards, there was the following exchange between the appellant and his counsel:
Q. When are you talking about Mr Guo?
A. What I’m trying to say is that when Ah Ming gave me this mobile phone in the box I did not check what accessories it had....
[59] Unfortunately the prosecutor formed the impression that the appellant had claimed that the client had given him the Motorola, a point illustrated in the following passage in cross-examination:
Q. As you told us yesterday, you said yesterday that you’d got that Motorola phone, “When at Mt Wellington I received the phone from a client and the phone itself was dirty because I used it at the site.” So you’re telling us that you received the Motorola phone from a client, aren’t you?
A. I think that was a misunderstanding from you. I was saying that I received the phone call from phone set, that phone set as I worked in a site it was dirty, and it didn’t have a good contact. Ah Ming next to me said, “Your phone didn’t have a good contact, I’ll give you one.” I didn’t know whether I didn’t make it clear or you didn’t understand what I said yesterday. That was why Ah Ming gave me this phone, he wouldn’t give me one phone for no reason. As he noticed that my phone wasn’t working properly that was why he gave me this phone set.
[60] It is quite clear from this that the prosecutor interpreted very literally and entirely incorrectly what the appellant first said in evidence in chief in the passage set out in [58] as to how he received the Motorola phone. And she then continued to cross-examine on the basis that what the appellant said in the passage of cross-examination which we have set out in [59] was a change of stance from what he had said in evidence in chief. This, the appellant denied, a denial which he repeated in re-examination. The prosecutor, however, did not give the point away and when she addressed the jury in closing, she continued to maintain that the appellant had changed his stance as to who gave him the Motorola.
[61] As we have endeavoured to explain there was a perfectly good basis for the prosecutor to contend that the appellant’s story about the Motorola was false (see [55] above). But she largely butchered the point by allowing herself to be distracted by the bad and unsound argument as to the alleged change in stance over the provenance of the phone. The mistake that the prosecutor had made was entirely obvious and the Judge ought to have intervened to sort it out. That said, the jury had the transcript of evidence and there is no reason to suppose that they did not resolve the issue as to the alleged change of stance appropriately on the basis of that transcript. To be fair to the prosecutor, she did invite the jury to look at the transcript to decide the point for themselves.
[62] Mr Cato’s complaint on this aspect of the case was not so much directed to the misunderstanding over what the appellant had said in evidence as to who gave him the Motorola but rather was that, although the Judge gave an orthodox tripartite direction, he did not give a stand-alone lies direction in relation to the Motorola (or indeed any other alleged lies told by the appellant).
[63] Given the confusion that we have referred to, this is an awkward complaint to deal with at least when assessed in relation to the Motorola and the alleged change of stance. As is apparent, we consider that there was nothing in the alleged change of stance in relation to the provenance of the Motorola. In our view, the prosecutor’s argument merely required a correction and did not itself call for a lies direction. On the other hand, it is fair to say, that the Crown case did, at least in broad terms, encompass the contention that the Motorola evidence as a whole was a lie and this necessarily raises the issue whether a lies direction was required.
[64] Section 124 of the Evidence Act 2006 provides:
124 Judicial warning about lies
(1)This section applies if evidence in a criminal proceeding suggests that a defendant has lied either before or during the proceeding.
(2)If evidence of a defendant’s lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3)Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant’s lie, or if the defendant requests, the Judge must warn the jury that –
(a) The jury must be satisfied before using the evidence that defendant did lie; and
(b) People lie for various reasons; and
(c) The jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4)In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant’s lie.
[65] The Crown was not asserting that any particular alleged lie formed a discreet component of the circumstantial case against the appellant. Rather the Crown was inviting the jury to reject the whole narrative of the appellant as to Ah Ming. If there really was an Ah Ming who had worked with the appellant on a building site in 2004, had given the appellant a still-boxed Motorola in June or July 2006, and had arranged the August shipment for NAK, he would most likely have left some tangible traces of his existence. The cross-examination and submissions addressed to all of this were primarily subsets of the overall Crown contention that the defence was untrue.
[66] Of course, the Crown prosecutor did contend that some of the individual elements of the appellant’s narrative as to Ah Ming were plainly untrue. This is so in relation to the Motorola evidence which, given the way the case was argued, is all we need to focus on in this context. It is right to recognise that what the appellant said about the Motorola was collateral to his core defence. It would, for instance, have been possible in strict logic for the jury to reject the Motorola story but to accept (as at least reasonably possible) his general narrative.
[67] Section 124(3) requires a direction to be given either where the defence requests it or if the Judge is of the opinion that the jury might place “undue weight” on the alleged lies. No request for a lies direction was made by the defence and plainly the Judge did not form the opinion that the jury might place undue weight on the alleged lies. In issue before us is whether the Judge was wrong in this regard.
[68] As noted, on the Crown case, the appellant’s whole account of Ah Ming, and his associated denial of guilt, were untrue. It was all just a “big lie”. Plainly, however, a lies direction is not required where the Crown simply maintains that a defendant’s exculpatory explanation is false. On the other hand a s 124(3) direction could have been given in relation to some of the collateral lies attributed to the appellant, including his evidence as to the Motorola phone. Such a direction could have been further refined to make it clear that the collateral lies were relied on only as to the credibility or otherwise of the appellant’s explanation.
[69] Before the coming into effect of the Evidence Act, a cautious trial judge, in the circumstances of this case, would have given at least a limited lies direction as to the alleged collateral lies. In R v Oakes [1995] 2 NZLR 673 at 684 (CA) the Court observed:
Where the issue for a jury is simply the credibility of the evidence given by the accused, no direction as to lies is normally required. But where the accused has, or is alleged to have, told lies out of Court and that fact is said to be relevant to credibility, no more than a simple direction is usually needed to explain the possible reasons for lying and that lying is not to be regarded as evidence of guilt.
Reference can also be made to R v Worden CA111/99 8 July 1999 at [20]:
[Counsel for the appellant] seemed at one point to be arguing that every time the Crown attacks the veracity of the accused’s evidence in the witness box or his out of Court statements, a lies warning is required. That would be to require such a warning in almost every case. The very suggestion from the Judge that the accused might be lying is unlikely to be helpful to the accused and a lies warning is necessary only when there is some real danger of inappropriate reasoning. An appropriate way to deal with a suggestion from the Crown that the defence version of events is false or mistaken is to direct the jury that if that is their view they must not jump straight from their rejection of the accused’s version to the conclusion that he must be guilty. Whether the accused is guilty in such circumstances requires an assessment of all the evidence the jury does accept against the standard of proof required of the Crown. The fact that here the Crown was challenging the veracity or reliability of the accused’s evidence did not of itself require a lies warning, as opposed to the sort of direction just mentioned, which the Judge in essence gave in his direction about the position if the jury rejected the accused’s evidence.
[70] Although, as noted, we think that a cautious Judge would, prior to the Evidence Act, have given a lies direction, its absence, particularly given the tripartite direction which was given, would not, in the circumstances of this case, have warranted the allowing of an appeal. And, in any event, the present case necessarily falls to be determined by reference to s 124 of the Act under which, in our view, there was no requirement for a lies direction; this for reasons which we are about to give.
[71] The Motorola issue was of, at best, limited significance in the case. The cogent factors which might have suggested that the appellant’s account of its provenance was untrue were not extensively pressed in argument by the prosecutor. The change of stance argument she did advance was devoid of merit. All in all, and given the overall context of the case, there were distinctly more serious difficulties with the Ah Ming defence than the alleged lie over the Motorola. Further, given the lack of emphasis on the genuine problems associated with the Motorola story, we see no likelihood of the jury having reasoned illegitimately or illogically in relation to the Motorola phone, for instance by assessing the appellant’s contentions as to the phone on a stand-alone basis, concluding that he was lying and then jumping to the conclusion that he was guilty. We are, accordingly, of the view that there was no likelihood of the jury placing undue weight on the appellant’s alleged lies as to the Motorola’s provenance. Rather, the jury would have had regard to the plausibility of the evidence of the appellant about the Motorola simply as part of its holistic assessment of the evidence.
The way in which the Judge summed up on the facts
[72] In her closing address the prosecutor listed a large number of factors (around 24) which she maintained pointed to the appellant being guilty.
[73] In the course of this exercise, she noted:
(a)The similarities between the May shipment (which the appellant organised) and August shipment (which on the appellant’s evidence Ah Ming organised) and the associated significance of the appellant’s visit to China between March and May 2006.
(b)The personal involvement of the appellant in unpacking the container on 5 September (which he had denied in his 8 September statement).
(c)The personal involvement of the appellant in breaking open the granite box and the bagging of the ContacNT.
(d)The commonalities between what was found in his house and in the granite boxes.
(e)The pieces of granite with glue on them found at his property.
(f)The appellant’s reaction when the police and customs party arrived.
(g)The statement made on 8 September 2006.
(h)The later handing over of the Motorola without a SIM card.
[74] She maintained that there were many deficiencies in the Ah Ming narrative put forward by the defence.
(a)Ah Ming was implausibly trusting, putting the appellant, whom he hardly knew, in possession of drugs worth between $1.5m and $3m.
(b)The evidence of Ms Hong and the daughter as to a later call from Ah Ming was incredible.
(c)Only nebulous particulars were provided by the appellant as to Ah Ming.
(d)There was not any evidence of payment associated with the appellant’s account of events.
(e)There had been no plausible innocent reason for the appellant to break into the granite box.
[75] Counsel for the appellant in his closing address stressed what he maintained was the normality of what happened (in terms of the way in which NAK imported goods); the absence of any apparent urgency between 4 and 6 September; and what he claimed was the implausibility of the appellant knowingly being involved in the importation of drugs (particularly given that there was a tenant living in the house and a painter arrived at the house on 6 September). He noted that the appellant knew that the container had been subject to x-ray examination and that the customs agent had demanded payment as soon as the container was released by customs. He claimed that this would have been very alarming to the appellant had he known that the container held drugs. There was no evidence of lavish living.
[76] We have set out in the appendix to this judgment what the Judge had to say as to the facts. As is apparent, the Judge recorded the substance of the defence as being a denial by the appellant of having been knowingly involved in the importation of drugs. He also reminded the jury, but only in general terms, of the addresses which they had heard. As to this, we note that counsel for the appellant in his closing address invited the jury to take notes recording the particular points he was making and this may perhaps have encouraged the Judge not to seek to paraphrase what counsel had said.
[77] Overall, the way in which the Judge summed up was reasonably favourable to the appellant. He adopted something of a piece by piece approach to the Crown case. He said nothing by way of endorsement of the prosecution arguments and, as when dealing with the elements of the Crown case, he generally put the substance of the defence counter-arguments.
[78] We are, however concerned about the unstructured nature of this part of the summing up. This was an important trial involving a substantial importation of drugs and a reasonably complex pattern of evidence. The case took some two weeks to try. As we have endeavoured to indicate, the linkages between the two importations raised issues which were not entirely easy to grasp and warranted an appropriate explanation from the Judge. Similar comments can be made about the case as a whole. But the Judge made no attempt to draw together the different threads of the case.
[79] In a number of recent judgments, this Court has expressed the view that an ideal summing up on the facts should along the lines described by Lord Devlin in Trial by Jury (1966) at 115-116:
All the material which gets into the ring that is kept by the rules of evidence is not of course of equal value, and the task of counsel and then of the judge is to select and arrange. In discharging this task counsel can be helpful but not disinterested and the jury must look chiefly to the judge for direction on the facts as well as the law. It is his duty to remind them of the evidence, marshal the facts and provide them, so to speak with the agenda for their discussions. By this process there emerges at the end of the case one or more broad questions – jury questions – which have to be decided in the light of common sense.
This case pre-eminently called for the sort of summing up envisaged by Lord Devlin and Judge’s summing up fell well short of the mark.
[80] Given this, this Court must give anxious consideration to whether the inadequacies in the summing up resulted in miscarriage of justice. A failure to marshal the evidence can amount to a process error which warrants the allowing of appeal, see Fong v The Attorney-General [2008] NZCA 425 at [63]. In deciding whether there was a miscarriage of justice, we must address whether there was a risk that the deficiencies in the summing up resulted in prejudice to the appellant in the sense of affecting the result of the trial: see Wi v R [2009] NZSC 121 at [46]. This requires an assessment of the evidence and an associated assessment of the impact on the jury of a summing up in which the threads of the case were adequately pulled together.
[81] As to the evidence, an obvious starting point (albeit one that is inauspicious from the point of view of the appellant) is that the appellant was caught red-handed.
[82] His first attempt at an innocent explanation in the form of his 8 September 2006 statement did not hold water. It was plainly untrue in a number of important respects, particularly his assertions that the suppliers of the May and August shipments were different and as to when he became involved with the August shipment. As well, and perhaps more importantly, it involved the admission that the May shipment had contained contraband cigarettes. Given the similarities between the May and August shipments and what was found at his property on 6 September 2006, that admission was practically fatal to his defence.
[83] Unsurprisingly, the appellant at trial repudiated the 8 September 2006 statement. But his grounds for doing so were unsatisfactory to say the least.
[84] It will be recalled that in evidence he sought to explain the details he gave at the interview as to how he arranged for cigarettes to be placed in the May container and his acceptance that the August shipment was the second time he had done this. He did this by claiming that there had been a mix-up over pronouns and that he was merely describing what he surmised that Ah Ming had done. But this does not make sense as it was not the defence case that Ah Ming had been involved with the May shipment and he had no basis at all (on his evidence) for knowing whether Ah Ming had previously smuggled cigarettes into New Zealand and, if so, how. His evidence also imputes an extraordinary amount of error to the interview process, this despite it being conducted in essentially the same way, and in the same language, as his evidence at trial.
[85] His second attempt at an innocent explanation was no better than the first. It involves a number of implausible coincidences:
(a)The method of concealment used for the August shipment was of a kind which might be thought most likely to occur to (and be able to be implemented by) a stone mason, moreover, a stone mason who was generally familiar with way in which granite from China might be packed for export to New Zealand. The appellant was just such a stone mason but Ah Ming was not. It was thus a coincidence that Ah Ming should happen to choose to use not only the appellant as his dupe but also a method of concealment which was so in keeping with the appellant’s background.
(b)The next coincidence is that the appellant and the smuggler should both apparently share an interest in cigarettes, an interest manifested in the case of the appellant by the very large number of cigarettes which were on his property and, in the case of the smuggler, by the large number of cigarettes in the August 2006 shipment. This shared interest in cigarettes was reasonably specific as the August shipment included Ashima and Double Happiness cigarettes and cigarettes of those brands were found at the appellant’s house.
(c)There is the further coincidence that on the morning of 6 September 2006, when he discovered the first of the granite boxes, the appellant, despite being on his account innocent, did not ring the police but rather acted as a guilty man would, breaking into the granite box, removing and bagging ContacNT and running away from the police and customs officers when they arrived.
(d)As already noted, if the jury could be satisfied that the May shipment contained contraband concealed in granite boxes, the coincidence of Ah Ming just happening to use the same technique for the August shipment is of heroic proportions.
[86] As well, his claim as to Ah Ming’s involvement was inherently implausible in many respects:
(a)It is not plausible that Ah Ming could have acted as the appellant said he did without leaving some tangible trace of his existence.
(b)The (from his point of view, innocent) deal that the appellant asserted he had made with Ah Ming is likewise not plausible. Why would Ah Ming go to the trouble and expense of arranging the August shipment and of meeting all of the associated costs on the basis that payment would be sorted out after the goods had been sold?
(c)The behaviour which he attributes to Ah Ming is also not plausible. Drugs worth between $1.5m - $3m were imported and it is practically inconceivable that this would have happened without Ah Ming following the progress of the shipment and making arrangements for the uplifting of the drugs once they arrived in New Zealand. Otherwise there was every prospect that the appellant would simply have passed on possession of the granite to EMD who would, in due course, have discovered the drugs.
[87] We are conscious that the jury took some time and had some difficulty reaching their verdicts and that a Papadopoulos direction was given. However, we think that these difficulties are likely to be due to the Judge not giving the jury the assistance to which it was entitled. Instead, the case was left with the jury simply as a mass of unorganised facts.
[88] We are satisfied that any orderly analysis of the facts would have been significantly more adverse to the appellant than the approach taken by the Judge. For this reason, we are of the view that there was no miscarriage of justice.
[89] Our conclusion means that there is no occasion to resort to the proviso. Indeed, if we had concluded that there was a miscarriage of justice, we could not logically have relied on the proviso: Sungsuwan v R [2006] 1 NZLR 730 at [113] (SC). Our approach to this issue, however, is somewhat akin to what would be required if the proviso were in play. Accordingly, we consider that we should record that we are satisfied beyond reasonable doubt that the appellant was guilty and likewise satisfied that properly directed, no reasonable jury would acquit the appellant on the evidence led at trial: Matenga v R [2009] 3 NZLR 145 at [28] (SC).
Disposition
[90] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
APPENDIX – WHAT THE JUDGE HAD TO SAY ABOUT THE FACTS
[48] I now wish to turn to the facts of the case and as I say you are the sole judges of fact, I am not going to deal with the facts in any great length but there are some things that I want to say.
[49] In this case the Crown relies partly on what we call circumstantial evidence. It is partly circumstantial but there is direct evidence as well, but there is also a lot of circumstantial evidence of surrounding matters.
[50] There is nothing inherently second rate or dubious about circumstantial evidence, it simply involves the process to which I have already referred, that of drawing inferences or conclusions from evidence that you regard as being reliable.
[51] When a series of reliably established facts connect with each other in a way that carries conviction in the minds of a jury such as yourself, then that can result in proof beyond a reasonable doubt.
[52] Taken individually each fact may not prove much at all, but if when you put them altogether you find a series of otherwise inexplicable coincidences then it is a matter of common sense and logic that the only conclusion you can come to is that the accused is guilty, then that will be sufficient.
[53] But if the cumulative effect of the individual facts does not reach that standard and still leaves gaps then the evidence does not amount to proof beyond reasonable doubt. It is the cumulative effect that is important and the analogy that is often drawn is that of a rope. A rope is made up of many strands of fibre, separately the strands may not support much weight at all, but sufficient of them woven together will do so. So it is with circumstantial evidence.
[54] It is for you to say whether you think that in this case there is such a combination of facts or events that you are satisfied beyond reasonable doubt of guilt. As I say the Crown does not totally rely on circumstantial evidence, they rely also on the direct evidence, but have presented evidence of a lot of surrounding matters as well.
[55] You have heard a lot of evidence over the past nine days, but this case now boils down to quite narrow issues and this is often the case with a criminal trial. I am not going to re-traverse all of the evidence, you have got the transcript, and you have heard the witnesses during the course of the trial, and I know from my observations of you that you have paid close attention to what they have been saying. In addition you have also had a lengthy analysis of the facts from each counsel.
[56] As I say there is a lot of peripheral evidence, apart from that relating to the specific events that were observed on 6 September 2006, and that is the circumstantial evidence that I was talking about. You will make of that what you will.
[57] Remember to be balanced about that and consider not only points that might point to guilt, but also those that might point to innocence, or at least those that may raise a reasonable doubt in your mind. You have got to be fair about that and consider all of the evidence, both for and against each side of the case here.
[58] There is the evidence of the cigarettes and the one blister pack of Contac NT that were lying around in the grounds of the property, and the blister pack found inside. Either the cigarettes were previously imported or they were acquired by the accused, as he says, on the Internet.
[59] Contact NT appears to be a drug commonly available in China. You are not allowed to sell it here without prescription. The blister pack may have been left there in innocent circumstances or it may not, it is a matter for you to decide.
[60] Of course do not forget that even though there has been this evidence of the cigarettes the accused is not charged with anything relating to cigarettes. The Crown has put that evidence in because of the nature of the contents in the crates on this occasion, and in particular that some of the cigarettes found in the crates were the same brand as the cigarettes that were found in the house.
[61] So the surrounding evidence is part of the overall narrative of events which you need to consider and take into account. There is also the evidence of the pieces of granite lying around the yard, similar in profile to the lids on the hidden compartments on this particular occasion.
[62] There is also evidence of glue on some of the pieces and you will decide whether you accept that the accused created these in making up a barbecue, as he says, or whether it is evidence of a similar previous importation.
[63] Even if there has been an importation of goods in a secret compartment previously that does not of itself prove that the accused has previously imported drugs. Nor does it conclusively prove that he knew that there were drugs in the crates on this occasion.
[64] This evidence of the granite outside is just one of the strands in the circumstantial part of the Crown’s case for you to consider and as I have said it is a matter for you to decide. It may prove nothing in your minds, in which case you will simply disregard it.
[65] As I said earlier, bear in mind that there have been serious language difficulties in this case and it may have been difficult for the accused and his wife to totally get across their positions.
[66] I mention that particularly in the context of Mrs Hong’s evidence. There is evidence from Mrs Hong about the cheques that she cashed. You will judge that in the context of Mr Guo being in prison and her having to maintain her household.
[67] Also you will judge it against the evidence that has been led about how shipments are dealt with and there have been the documents, the bill of lading and the commercial invoice and the other documents. They are all matters that obviously you will look at. Do not become too bogged down in the technicalities of sea carriage of cargo, assess the evidence as a whole and in a common sense fashion.
[68] You may well accept that Mrs Hong had fears in the circumstances for her financial position with her husband in prison facing these charges, but again it is a matter for you to judge.
[69] During his evidence Mr Guo said that he initially faced charges arising from a previous importation. I do not know whether you picked that up, and it was something that was said very much in passing. I need to tell you that Mr Guo is totally mistaken about that and I must ask you to disregard that particular statement.
[70] Mr Guo and his wife were clearly running a legitimate business importing granite and other products, so you need to assess the matter overall. Were the activities of Mr Guo which have been described in this Court consistent with the normal operation of that business?
[71] Mr Morrison has gone through a number of factors that he says are consistent with that. Or were Mr Guo’s actions inconsistent with the running of that business? That is a matter that you need to assess in your overall assessment of the evidence.
[72] As I say this really boils down to quite a narrow issue. That the primary issue for you to determine here is whether Mr Guo knew the drugs were in the crates in the hidden compartments. You will assess that evidence as a whole.
[73] If you consider that was correct, that all of the granite was to do to EMD Ltd, then that might be a factor that you would take into account, to the benefit of the accused, because that would be a fact inconsistent with his belief or knowledge that the drugs were in the crates. He would hardly arrange for them to be sent to a customer if he knew that the drugs were in there. Of course they did not go there and you need to consider that evidence as to what you believe.
[74] Similarly if you consider that Mr R Ming existed, and was behind all of this, then again that is a matter you will take into account in deciding on the issue of whether Mr Guo is innocent or guilty of these charges.
[75] Even if Mr R Ming existed, if you decide Mr Guo nevertheless knew of the drugs and participated in the importation and the subsequent possession for sale or supply, then he will still have committed the crimes with which he is charged.
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