The Queen v Lasei

[2007] NZCA 540

IN THE COURT OF APPEAL OF NEW ZEALAND

CA491/07
[2007[ NZCA 540

THE QUEEN

v

ULUVALU PAT LASEI

Hearing:19 November 2007

Court:Hammond, John Hansen and Miller JJ

Counsel:B Webby for Appellant

F E Guy Kidd for Crown

Judgment:26 November 2007 at 3.30 pm

JUDGMENT OF THE COURT

A        The appeal against the declining of bail is dismissed.

B        The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]       Mr Lasei was charged with two counts of being a party to the importation of a controlled drug into New Zealand contrary to ss 6(1)(a) and 6(2)(c) of the Misuse of Drugs Act 1975. 

[2]       He stood his trial before a jury presided over by Judge Adeane in the Napier District Court on 6 September 2007.  He was convicted on both counts. 

[3]       That same day, an application for bail pending appeal was made to Judge Adeane, who apparently declined it. 

[4]       Sentence was passed on 11 September 2007.  Mr Lasei was sentenced to an effective sentence of two years and three months imprisonment.

[5]       On 19 September 2007 Mr Lasei appealed against his conviction.  He also appealed against the decision of the District Court Judge declining him bail pending appeal.

[6]       The case was included, at late notice, in this week’s sitting list before this panel of the Criminal Appeal Division, as a bail appeal.  However, by the time it came before us counsel had also filed submissions on the merit appeal.  Both counsel were content – indeed in Mr Webby’s case anxious – to have the merit appeal disposed of now.  The panel determined to hear the merit appeal.  Accordingly, the appeal against the declining of bail fell away.  As a matter of caution, it is dismissed.

Background

[7]       In December 2006 customs officers intercepted two packages sent from Hong Kong to two separate addresses in Flaxmere, Hastings.  Each contained ceramics.  Concealed in the ceramics were granules containing pseudoephedrine.  That is a class C controlled drug and a precursor substance used in the manufacture of methamphetamine.

[8]       On 17 January 2007 search warrants were executed at the two addresses to which the packages had been addressed.  Mr Lasei lived at one of those addresses.  When questions were put to him at that time, he either evaded or denied knowing anything about persons at the two addresses to which the packages were addressed.

[9]       Unfortunately for Mr Lasei, a note was discovered pinned to a notice board in the kitchen area of his home.  Written on the note were the names of the two persons to whom the packages were addressed, including Mr Lasei.  Mr Lasei then admitted that people living in Auckland had asked him to receive packages for them.  He denied knowing what was in them.

[10]     Mr Lasei said the person who asked him to receive the packages was a girl from Auckland.  He denied knowing her telephone number.  However, her name and cell phone number were found programmed into Mr Lasei’s cell phone.  Mr Lasei said he was going to get $1,000 for delivering the packages to Auckland.  He said that this woman had stayed at his house in 2005 and that whilst there she received a package containing a ceramic horse and a teapot sent from Hong Kong.  In a subsequent video taped interview he said that he thought the current package was the same sort of package that she had received when she was at the address – “just a toy sort of thing”.  Faced with the obvious proposition that the ceramic items were not worth much more than $10 or $20 he said it was “just strange” that he was getting paid $1,000 to receive the package, when this person could have received it herself.

The trial

[11]     The Crown case was run on the footing that Mr Lasei was a party to the importation.

[12]     The sole issue at trial was whether Mr Lasei knew that the packages contained illegal controlled drugs.

[13]     Mr Lasei did not give evidence, as is his right.  But as is routinely the case in “knowledge” type cases, his failure to give evidence created considerable difficulties for mounting a defence.  His counsel was put in the position of having to do the best that the defence could do in the absence of any direct evidence, or indeed any evidence, to the effect that Mr Lasei had no knowledge of what was in these ceramics.

[14]     It was this context which created the difficulties at trial, and about which Mr Webby now complains in relation to the Judge’s summing up.

The appeal

[15]     Initially, there were three points on appeal. 

[16]     The first is that the indictment was a nullity.  This point was expressly abandoned before us.  We say no more about it.

[17]     The second point was that the transcript of the cross-examination of a particular customs officer has been “lost”.  It was suggested that this “may have caused … defence points to be omitted in the summing up”.  This point very much blends into the main and really the only point on the appeal, to which we will shortly come.  But we observe here that Mr Webby made no complaint at the conclusion of the Judge’s summing up that something which ought to have been remarked upon had not been drawn to the attention of the jury.

[18]     The main point of the appeal is somewhat confusing.  It is expressed as being: “The learned Judge had erred and had also inadequately put the defence case to the jury.  Therefore the jury has been given an unbalanced summing up.”  This point was somewhat enlarged upon in a memorandum Mr Webby filed in support of the appeal on bail.  However the matter is approached, it seems that the complaint is that the Judge did not adequately get across to the jury certain defence points; that it was therefore “pro-prosecution”; and that has brought about a miscarriage of justice.

Discussion

[19]     The starting point is that the Judge was very clear, and the jury could have been in no doubt, as to what the issue in this case was.  The Judge said at [24] of the summing up:

… really knowledge is at the heart of this case.  Knowledge is the matter in dispute.  Did the accused know that illegal drugs were involved [as being secreted in these ceramics]? 

[20]     The Judge then went on to discuss inferences.  He repeated the Crown submission that “[you] can’t open a little porthole in a man’s head and say, ‘look in there, that’s what he knew’.”  The Judge accurately indicated that the jury needed to look at all the surrounding facts and ask itself whether it could reach any other conclusion but that this person must have known what was in the ceramics (at [26]).

[21]     Mr Lasei did not give evidence.  He had made an out-of-court statement and the Judge appropriately told the jury that it was not sworn testimony, but it could have regard to it.  What parts of it they accepted, and what weight they placed upon it, was for them.

[22]     In that statement Mr Lasei said “… all I know is I thought will be the same package as received when she was here, just a sort of a toy thing … me … us don’t know about drops or unknowing what’s in there”.  And a little further on, “All I thought – ah must be a gift from like those horse thing or, you know, ah China ah or what … so I just look at that and I thought – ah well yeah that’s good, from your family.”  And again, “I thought it was the same thing as what I see when she received the other um package”.  Finally, “I mean um that’s what we ah thought … well you know same thing that … as what we seen the other day”.

[23]     Somewhat unsurprisingly the police interviewer put it to Mr Lasei that:

Q.So if the porcelain horse that you saw would have been worth 10/$20 maybe a little more, but you got paid $1,000 just for driving it up to Auckland, what did you think you were delivering?

A.I just don’t know, you know, I just don’t know about that.

[24]     In his closing address to the jury Mr Webby said:

He thought what was in the parcels was china but he did not look inside them.  It could be easy for him he could say well I thought it was some other prohibited thing, but he hasn’t said that.  He says he thought what was in the parcels is what he saw when Margaret stayed at his address and he saw china and that’s what he thought were in the parcels.

And:

Suspicion doesn’t mean he knew there were drugs in the parcels.  He thought it was china.

[25]     A customs officer had said that other illegal things were sometimes brought into the country, and in his closing address Mr Webby said:

The customs officer said there were many illegal things that can be brought into the country that were prohibited.  It could be weapons, porno, things that need to be excise tax once they go over $400.  Wouldn’t it be reasonable that if someone had been receiving parcels for someone else, there could be suspicions of anything.  Suspicion doesn’t mean he knew there were drugs in the parcels.  He thought it was china.

[26]     It seems plain enough that it was that passage which the Judge had in mind when he said to the jury at [46] of his summing up:

On the question of what he knew or didn’t know, the accused is quite entitled to advance reasonable hypotheses to you based on the evidence in the case, but there is no evidence here that this accused realised his transaction was illegal and had criminal implications, but affirmatively thought that some other illegal commodity was involved.  There’s no evidence of that.

[27]     With all due respect to Mr Webby, the rebuke was entirely justified.  This was yet another example – regrettably all too common in trials – of counsel suggesting something which was not based on any evidence in court.  The Judge was perfectly entitled to remind the jury of that.

[28]     Mr Webby also complained about what the Judge had said in relation to the note pinned to the wall.  In closing Mr Webby had said:

If you were a criminal courier of drugs would you leave incriminating evidence like a note pinned on a wall for everyone to see?  I don’t think that’s what a criminal would do.

[29]     What the Judge said about this appears at [42]:

Mr Webby says that that note on the wall simply shows how naïve and foolish the accused was to leave this sort of evidence lying round.  Well of course, the Crown answer to that is, they’re not alleging that he was a clever criminal, just that he was a criminal and the evidence stands for you to consider, but Mr Webby says it could have that interpretation, that here was a naïve man being used for someone else’s criminal purposes.

[30]     The complaint in part is that the Judge did not accurately put what Mr Webby had said.  There is some force in that, but we are satisfied the summing up as a whole did convey Mr Lasei’s case that he was a dupe of others, that he did not know what was in the ceramics, and his conduct, such as pinning the note on the wall, was consistent with innocence.  Further, and fundamentally, the Judge also said that the evidence – that is, the existence of the note and the contents of it – was evidence for the jury to consider.  That was entirely correct.  What the jury made of it of course was entirely for it.

[31]     This Court has said on countless occasions, in appeals of this kind, that the summing up has to be considered as a whole.  It is doubtful if there has ever been a perfect summing up, and a portion of it may be excised and then brought up on appeal.  The approach of the Court is rigorous as to directions on the law.  On questions of fact (which is where the concern is being expressed here) the issue is whether the Judge correctly identified what it is the jury had to decide, whether the essential items of evidence were drawn to their attention, and what the significance of them was. 

[32]     The accused’s version of events had been stated in his out-of-court statement and that was drawn to the attention of the jury.  The Judge clearly identified the central issue as whether the Crown had proved that he knew there were controlled drugs in the ceramics,  and he said of all these things, “ultimately the significance of this is for you the jury to consider”.

[33]     In the end, the appeal in this case fell a long way short of establishing a miscarriage of justice.  It too is dismissed.

Solicitors:
Crown Law Office, Wellington