The Queen v Christian Damian Wickremasinghe

[2003] NZCA 198

IN THE COURT OF APPEAL OF NEW ZEALAND

CA137/03

THE QUEEN

v

CHRISTIAN DAMIAN WICKREMASINGHE

Hearing:21 August 2003

Coram:Gault  P
Fisher J
Rodney Hansen J

Appearances:  J H Wiles for Appellant

A R Burns and A F Pilditch for Crown

Judgment:21 August 2003 

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]       The appellant was convicted following a jury trial in the High Court at Auckland of importation of a Class A drug, namely heroin.  On 28 March 2003 he was sentenced to 12 years imprisonment.  This appeal is against his conviction.

The facts

[2]       The appellant is an Australian citizen.  On 23 July 2001 he arrived in Auckland from Sydney, and checked into a hotel room in the city using the false name of Anton Eligh.  Mr Isaac occupied the hotel room with him.

[3]       On 25 July 2001, two persons arriving from Kuala Lumpur were stopped by Customs at Auckland International Airport.  Each had a suitcase containing just over 2kg of high purity heroin.  In addition they had 500g of high purity crystal methamphetamine in their possession.  Both persons admitted involvement in the importation of these drugs into New Zealand, claiming to be couriers (at least in respect of the heroin).  They agreed to assist Police in making contact with the intended recipients of the heroin.  The two were booked into an inner city hotel.  They had been instructed to make a phone call to Malaysia to inform their contacts that they had arrived safely.  Shortly after they did that a phone call was received from the appellant indicating that he would come to the hotel to uplift one of the suitcases.  This arrangement was confirmed by a phone call to Malaysia.

[4]       At around 8.15pm that night, the appellant arrived at the hotel room occupied by the couriers.  He had a short discussion with one of the men, and indicated that he did not wish to pick up the bags at that point because he wanted to talk about it with someone else.  At this point the appellant was arrested.  Mr Isaac was also arrested, and a search of their hotel room revealed significant sums of money.

[5]       The jury in the first trial of the appellant was unable to reach a verdict.  In the course of the re-trial, counsel for the appellant made an unsuccessful application for a discharge under s347 Crimes Act 1961.  He later made submissions on the elements of the offence of importation which followed a similar line of reasoning.  It was agreed in this case that the importation had come to an end when the Police decided to retain custody of the drugs found in the suitcases.  This occurred sometime in the afternoon of 25 July 2002.  Prior to the summing up, counsel invited the Judge to direct the jury in accordance with the following draft direction.

If you are satisfied beyond reasonable doubt that at some time prior to the completion of importation the accused had agreed to collect the heroin from the couriers at the immediate destination where it becomes available to the consignee, then as a matter of law you cannot find the accused guilty of importation because the agreement was to perform an act after importation had ceased.

[6]       On this approach, as the agreement related to doing an act after the importation process had ceased, the appellant could not be guilty as a party to that importation.  However, the Judge issued a bench note explaining why he rejected this draft.  In the Judge’s view, counsel’s argument reflected a misunderstanding of the law of importation as stated by this Court in R v Hancox [1989] 3 NZLR 60. The submissions of defence counsel would have meant that an importer of drugs who arranged for others to bring the drugs into New Zealand for him could never be liable for importation.

[7]       In his reasons for ruling against the s347 application the Judge said:

Mr Raftery accepts that, had Mr Wickremasinghe’s first act relating to this drug importation been his act of telephoning room 1009, Mr Wickremasinghe could not be guilty as a party to the importation.  That is because the process of importation was by then complete.  But that is not the Crown case.  The Crown case is that, based on all the evidence of what Mr Wickremasinghe had been doing in the months before 25 July 2001 and of what he did and said on the evening of 25 July 2001, an inference can be drawn that Mr Wickremasinghe, prior to the completion of the importation, had agreed to be involved in it and had agreed to collect or arrange for the collection of the drugs from those who actually brought them into New Zealand.

…

The decision [in Hancox] is very instructive and both counsel accept that it correctly states the law. What Mr McNamara’s submissions concerning this case overlooked was an important matter stated near the start of the judgment. Richardson J, on behalf of the court, said (at 61):

On an application made to the High Court under s345(5) of the Crimes Act 1961 to quash the two importing counts in the indictment on the ground that they were not founded on the evidence disclosed in the depositions, two matters were common ground.  The first was that there was nothing to indicate any relevant act on [Ms Hancox’s] part prior to her removing the second parcel from the post office box.  The second was that there was nothing to suggest that she had in any way been a party to the importation activities up to and including the point of time that the parcel was placed in the normal course of business in the post office box by NZ Post officials.

That is the significant difference between Hancox and the present case.  Here, there is evidence from which an inference could be drawn that Mr Wickremasinghe was involved in the importation activities sometime before he made the telephone call to room 1009 and before importation was complete.

Mr McNamara’s error lies in his assumption that what Mr Wickremasinghe did and said on the evening of 25 July 2001 is the ‘act’ on which the Crown relies as constituting Mr Wickremasinghe a party to the importation.  That is not the act on which the Crown relies.  Rather, the evidence of what happened that night is but part of the evidence on which the Crown relies for its essential proposition, namely that, at some time prior to completion of the importation process, Mr Wickremasinghe had agreed to be involved in the importation, his role being to collect or arrange for the collection of the drugs from the couriers.

[8]       To assist the jury the Judge provided written questions focussing on the critical issues for determination.  The second, and key question was:

Are you sure that, prior to the completion of importation, the accused was involved in or agreed to assist with the arrangements for this importation of controlled drugs into New Zealand?

[9]       In his summing-up the Judge directed the jury in these terms:

Why have I put, in Question 2, that the Crown must establish that the accused’s agreement to be part of this importation enterprise must have come prior to the completion of importation?  The reason is simple.  You cannot be a party to an importation which is already over and done with before you agree to become a party to it.  That is a legal impossibility.

Now importation as a matter of law is a process which is not over in a split second.  Importation begins when the drugs first enter New Zealand’s territorial waters or airspace, and ends, either when the drugs become available to the consignee, or when the drugs are detained and seized by the authorities, whichever happens first.  In this case it is common ground between the Crown and the defence that importation was complete, that the process of importation came to an end, as I have put in Note 1, ‘… when the Police decided to retain custody of the drugs found in the suitcases’.  As Mr McNamara mentioned to you, that was a decision made by Detective Sergeant Steedman, and he explained why he made it.  It is not absolutely clear from his evidence when he made that decision, but it is clear that it was sometime between 2.00pm and 4.00pm on 25 July 2001, and you will see from the second sentence of Note 1 that the Crown and the accused accept that that is when the Police made that decision to retain custody of the drugs.  So what the Crown must prove is that Mr Wickremasinghe’s agreement to collect the drugs, or to arrange for their collection, must have been made before that time on 25 July 2001.  I do not think anything in this case turns on whether the time was 2.00pm or 4.00pm or a time in between.  For ease of explanation to you, I will just refer in the rest of this summing up to the earlier time of 2.00pm, but you will understand it is somewhere between 2.00pm and 4.00pm.  The Crown, therefore, must establish that Mr Wickremasinghe’s agreement to be involved was made before completion of importation, before 2.00pm on 25 July 2001.

Let me explain why this point may have some importance in this case.  You may accept Mr Wickremasinghe’s explanation that he knew nothing about the drugs or this importation.  If you accept that explanation then, of course, you will find him not guilty.  A second possibility is that you may find that Mr Isaac had agreed to be the collector.  Now you would need to ask, is it a reasonable possibility that he, after getting a call on the evening of 25 July 2001 telling him that the drugs were at Room 1009 at Rydges Hotel, then said to Mr Wickremasinghe for the first time, "Look I’m involved in a drug importation.  The drugs are now in Room 1009.  You go and collect them.”  Even if at that time Mr Wickremasinghe agreed to go and collect them, and did then attempt to do so, Mr Wickremasinghe could not be liable for importation because, unbeknownst to both him and Mr Isaac, the importation was by then complete.

[10]     When directing on the available evidence on his question 2 the Judge said:

On Issue 2, however, there is no direct evidence at all relating to the agreement which the Crown alleges.  There is nobody who can say, for instance, “I heard Mr Wickremasinghe say that he would pick up the drugs from the courier”, or that he “would arrange someone to pick up the drugs from the courier”.

The Crown case on this issue relies entirely on what is called ‘circumstantial evidence’.  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 you regard as being reliable.  When a series of reliably established facts connect with each other in a way that carries conviction in your minds, that can result in proof beyond reasonable doubt.

Now what you have got to do in this case is, first, make a list of matters you consider proved on the direct evidence.  Let me give you some examples – and they are just examples.  Suppose you found the following facts:

(a)   Mr Wickremasinghe had very little money.

(b)   Mr Wickremasinghe came to Auckland on 23 July 2001.

(c)   While he was here he did not do anything related to a mobile phone business or the setting up of such a business.

(d)   In the suite he lived in at Quay West there was a notepad beside his bed with the letters “MH’ on, and ‘MH’ stands for Malaysia Airways.

(e)   On the evening of 25 July, telephone traffic took place as summarised on that sheet Mr Raftery gave you.  Of course, that sheet is not an exhibit, as Mr Raftery explained.  It was simply part of his submission to you, and was his attempt at a compilation of what he submitted the documentary exhibits revealed.

(f)    Mr Wickremasinghe telephoned Room 1009 and had a conversation (the transcript of which is in the transcript book at pages 9 to 11).

(g)   Mr Wickremasinghe then visited Room 1009.

(h)   A short time later, Mr Isaac and his two friends came to Room 1009.

(i)     No-one else visited room 1009 that night to pick up drugs, or telephoned.

Now I am not saying you should find any of those facts.  That is entirely a matter for you.  But what I am saying is, there is direct evidence available relating to those matters, and you can make findings about whether you accept that direct evidence or not.  Some of the facts on the list I have just given you are not disputed;  for instance, that Mr Wickremasinghe spoke to Mr Kumar on the telephone.

[11]     When confronted with the distinction between the acts of the appellant after the importation was complete and the inference that might be drawn from those acts and other evidence as to earlier involvement in the importation, Mr Wiles turned his attack to the sufficiency of the evidence.  This had not been notified as a ground of appeal nor addressed in the written submissions but, in the absence of protest from Crown counsel, we heard the argument.

[12]     It was submitted that there was no sufficient evidence from which a reasonable jury, properly directed, could draw the inference that the appellant had any prior involvement by which he could be held to be a party to the importation.  Counsel argued that the matters listed by the judge in his summing-up could not be sufficient.  But those were expressly said to be examples.  There was other evidence of prior activities by the appellant that were available to be taken into account by the jury.  The Crown relied on these further matters.

The trips that the appellant had made to countries including Thailand, Malaysia (Kuala Lumpur) and Vietnam prior to July 2001.  Thailand, Malaysia and Kuala Lumpur assumed particular significance in the context of the origin of the drugs and couriers and the apparent movements of “Ah Kwan” during the taped telephone conversation;

The four trips that the appellant made to New Zealand during the same period of time, and prior to the 23^rd of July 2001;

The actual trip made by the appellant to New Zealand on the 23^rd of July 2001;

The steps the appellant took to meet with the co-offender between 23 July 2001 and 25 July 2001.

[13]     We have no doubt that there was evidence from which the jury could infer that the appellant, by agreeing to act as a recipient of the importation at a time prior to its completion, was facilitating it, at the very least by encouragement, so as to be a party by aiding or abetting.

[14]     Conviction on that basis is entirely consistent with the decision in Hancox as is clear from the following passage from the judgment (p63).

…importing is concerned with those acts designed to brings the goods from outside New Zealand to the point where they are available to the intended consignee.  Any involvement on the part of the importer or anyone involved as a party up to that point would properly be viewed as facilitating the importation of the goods into New Zealand.  After that point any dealings with a controlled drug would not constitute importing, but might amount to possession for supply or other illegal conduct under the Misuse of Drugs legislation.  A person who does no more than take delivery in New Zealand of drugs from abroad or who conveys them on arrival in New Zealand from A to B is not thereby a party to their importation into New Zealand but may, of course, have been a party to their preceding importation from abroad.

[15]     We are satisfied the Judge correctly applied the law and that the verdict was available to the jury.

[16]     The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland