The Queen v Nobakht

[2007] NZCA 488

IN THE COURT OF APPEAL OF NEW ZEALAND

CA417/06
[2007] NZCA 488

THE QUEEN

v

GHOLAMREZA NOBAKHT

Hearing:17 October 2007

Court:Chambers, Randerson and Williams JJ

Counsel:S Jefferson for Appellant

H D M Lawry for Crown

Judgment:6 November 2007 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed. 

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents

Para No
A large importation of methamphetamine  [1]
Issues on the appeal  [10]
Defence counsel’s errors  [17]
The questioning of Damien Ieriko  [19]
           The questioning of Detective Rodney Honan  [24]
           The questioning of Sarah Grime  [39]
           Not telling Mr Nobakht about his election
  whether or not to give evidence  [47]
           Introducing the fact Mr Nobakht was a refugee  [56]
           Introducing evidence of “large sums of cash”  [63]
           Pre-trial preparation  [70]
           Conclusion  [73]
Prosecutorial conduct  [74]
           Cross-examination about Mr Nobakht’s trips to Auckland  [77]
           Questions concerning who would be defence witnesses  [82]
           Cross-examination about Mr Nobakht’s return to Iran  [103]
           Sarcasm and ridicule  [117]
           Referring to the drug importation as being “ethnic-based”                   [123]
Trial judge errors  [128]
The effect of what happened at sentencing  [135]
Overall evaluation and conclusion  [153]

A large importation of methamphetamine

[1]       When Warren Hadfield and Gholamreza Nobakht arrived at Auckland International Airport on 8 February 2005 on a flight from Japan, Customs were waiting for them.  The two men were, ostensibly, not travelling together.  Two customs officers were detailed to search Mr Hadfield: they found, strapped to his back and in his underwear, two bags of methamphetamine, totalling 800 grams.  Another customs officer, unbeknown to Mr Nobakht, conducted a search of Mr Nobakht’s suitcase prior to its being placed on the baggage carousel.  He found nothing.  Mr Nobakht was accordingly allowed to pass through Customs unaware that he was under suspicion. 

[2]       Mr Hadfield, after the drugs were found, agreed to assist the authorities by making a controlled delivery.  All of this took a little time to arrange. 

[3]       After Mr Nobakht had passed through Customs, he went out into the arrival area, where he met a friend, Hamid Sahati.  They went to the McDonald’s restaurant for a meal.  All this time they were under police observation.  The police suspected Messrs Nobakht and Sahati were both involved in the Hadfield importation; their hope was that, when Mr Hadfield emerged into the arrivals area, he would be met by the other two men and a controlled delivery would then or subsequently take place.  Although Messrs Nobakht and Sahati waited around, somewhat suspiciously, for over an hour, they had left the airport by the time Mr Hadfield emerged. 

[4]       Mr Hadfield then rang, as he had been instructed to do, a Mr Mansoud in Japan.  Mr Mansoud gave him a telephone number to ring for his “New Zealand contact”.  Mr Hadfield rang that number and was told to go to the Crown Plaza Hotel in Auckland.  When it was discovered that hotel was full, Mr Hadfield was told to go to the Sky City Hotel.  Once there, he received further instructions to go to the casino bar, where he would be met.  First Mr Nobakht came up to him, followed a short time later by Mr Sahati.  Mr Nobakht then left, but Mr Sahati and Mr Hadfield continued to talk, over a drink, for about 15 to 20 minutes. 

[5]       After leaving the other two, Mr Nobakht twice, in quick succession, using public telephones outside Sky City, rang Mr Sahati on his mobile phone.  Mr Nobakht contacted Mr Sahati again later that evening and over the next two days.

[6]       On 9 February, Mr Sahati contacted Mr Hadfield again and told him “a friend” would meet him.  That friend turned out to be Morteza Latifi.  Messrs Latifi and Hadfield drove to Rotorua.  Eventually, Mr Latifi took the drugs from Mr Hadfield and drove to another motel.  On the evening of 10 February, the police entered Mr Latifi’s motel room, where they found both Mr Latifi and Mr Sahati and a substantial amount of methamphetamine.  The police then discovered that Mr Latifi’s girlfriend, Gina Rye, was staying at the same motel.  When the police searched her room, they found a backpack containing, in cash, nearly NZD260,000 and USD35,200.  Mr Sahati, Mr Latifi, and Ms Rye were all arrested. 

[7]       It was not until a month later that police executed a search warrant at Mr Nobakht’s house in Napier.  The warrant authorised the search and seizure of evidence connected to the importation of methamphetamine that had taken place and the suspected conspiracy to supply.  Mr Nobakht, although not formally arrested, was given his rights.  He agreed to accompany the police to the Napier Police Station.  Once there, he elected to exercise his rights.  He spoke to his lawyer, Barry Hart, by telephone.  He then agreed to undergo an interview about his movements.  That interview began rather badly for Mr Nobakht.  When he was asked about the events of 8 February, he gave a number of untruthful answers, not realising he had been under observation both at the airport and at the casino.  Once the “errors” in his recollection became clear, he asked again to speak to Mr Hart.  Having done so, he elected to say nothing further.  At that point, the interview was terminated and Mr Nobakht was formally arrested. 

[8]       Messrs Hadfield, Latifi, and Sahati all pleaded guilty to drug charges relating to the importation.  But Mr Nobakht and Ms Rye did not.  They were tried together before Winkelmann J and a jury.  It was a long trial, beginning on 9 August 2006 and not ending until 29 August.  Mr Nobakht was found guilty of importing methamphetamine and conspiring with others to supply methamphetamine.  Ms Rye, who faced only the conspiracy charge, was found not guilty. 

[9]       Mr Nobakht now appeals against his conviction. 

Issues on the appeal

[10]     Mr Jefferson advanced detailed submissions on Mr Nobakht’s behalf.  His overarching submission was that a miscarriage of justice had occurred because of the way in which Mr Nobakht’s trial had unfolded. 

[11]     The complaints fell into three broad categories.  The first category related to alleged errors made by Mr Nobakht’s trial counsel, Nigel Cooke.  With respect to this challenge, Mr Jefferson relied on the now well-known dictum from the lead judgment in R v Sungsuwan [2006] 1 NZLR 730 at [70] (SC):

In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach.  If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary.  But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[12]     Mr Jefferson identified seven alleged errors on counsel’s part which, taken together, he said, gave rise to real concern for the safety of the verdicts.  Three of the alleged errors related to parts of Mr Cooke’s cross-examination of Crown witnesses.  The fourth error related to an alleged failure to inform Mr Nobakht that he had an election as to whether he gave evidence.  The fifth and sixth errors related to alleged prejudicial material he introduced by inappropriate questioning during Mr Nobakht’s examination-in-chief.  The final error was said to be a general lack of pre-trial preparation.

[13]     The second group of complaints related to alleged prosecutorial misconduct.  There are five separate complaints.  Three of them relate to specific parts of the prosecutor’s cross-examination of Mr Nobakht, which are said to have been unfair.  (These give rise to indirect complaints against Mr Cooke and the trial judge: the former, it is said, should have objected to these parts of the cross-examination and the latter, it is said, either should have stopped the cross-examination or should have given remedial directions or both.)  The fourth complaint is that the prosecutor, Robert Ronayne, unfairly used sarcasm and ridicule, both during his cross-examination of Mr Nobakht and in his final address.  It is submitted this led to illegitimate prejudice.  The final complaint against the prosecutor related to one part of his closing address where he described the drug importation as “ethnic-based”. 

[14]     Thirdly, there is a group of complaints about the trial judge.  As already indicated, these are based on alleged failure to intervene during an improper cross‑examination of Mr Nobakht, coupled with an alleged failure to direct adequately or at all on the prosecutor’s alleged transgressions. 

[15]     A final issue arises from what happened at sentencing.  Mr Lawry, for the Crown, submits that, at sentencing, Mr Nobakht handed in a letter to the judge in which he confessed he was guilty.  Mr Lawry submits that Mr Nobakht then confirmed orally to the judge, through his lawyer, that he now accepted his guilt.  As a consequence of that, Winkelmann J gave a specific reduction in sentence on the grounds of a late admission of guilt and remorse.  Mr Lawry submitted that, even if there were some errors on counsel’s or the judge’s part (which he did not accept), there could scarcely be said to have been a miscarriage of justice when Mr Nobakht now admitted he was guilty of the crimes charged.  Mr Jefferson disputed Mr Nobakht had accepted guilt, but even if he had, that would not prevent his advancing concerns about the way in which the trial had run. 

[16]     We shall deal with those issues in turn. 

Defence counsel’s errors

[17]     We shall deal with Mr Cooke’s alleged errors in the order in which they were said to have occurred at trial.  It is always important to look at allegations of the sort made here in their context, of which chronological context is normally the most important.  Things done which might at first blush seem odd or even wrong often are quickly explained when put into their correct context. 

[18]     We are also conscious of the need to be wary of hindsight.  There has probably never been a trial involving oral evidence where each side’s counsel have not thought at the end that there were some things they could have done better and some things about which they wished they had not asked questions.

The questioning of Damien Ieriko

[19]     Damien Ieriko was a major Crown witness.  He was a drug investigator employed by New Zealand Customs Service.  He was part of the team briefed to await the arrival at Auckland Airport of Messrs Hadfield and Nobakht.  He was delegated the task of searching Mr Nobakht’s suitcase prior to its being placed on the baggage carousel.  He played a significant role in setting up Mr Hadfield for the controlled delivery and was afterwards present at both Sky City and Rotorua.  He produced a large number of the Crown’s exhibits.

[20]     Mr Nobakht’s complaint under this head relates to a single question Mr Cooke asked during his cross-examination of Mr Ieriko:

So at the end of the day, there is nothing, or was nothing, that Customs at that stage could be required to check or investigate in relation to Mr Nobakht coming into the country? … I was told of information received in regards to Mr Nobakht’s activities. 

[21]     Mr Jefferson complained that the answer was “clearly prejudicial”.  He submitted that Mr Cooke’s question “allowed evidence to be before the jury that New Zealand Police and/or Customs officials had information of concern regarding [Mr Nobakht’s] activities”. 

[22]     There is nothing in this complaint, when the question is seen in context.  Mr Ieriko had already in his evidence-in-chief given evidence of the Customs’ operation targeting Messrs Hadfield and Nobakht.  The jury accordingly already knew that Customs had some information, which rightly or wrongly caused them to have suspicions about these two men.  In Mr Hadfield’s case, the suspicions immediately proved accurate: he had methamphetamine on him.  In Mr Nobakht’s case, the suspicions initially proved groundless, as no drugs were found in his luggage.  Mr Nobakht was not subjected to a body search.  The short point is, however, that the jury did not learn anything they did not already know. 

[23]     The challenged question came at the end of a line of cross-examination intended to emphasise the apparently innocent nature of Mr Nobakht’s trip to Japan and return home.  Mr Cooke was attempting to show that the search produced nothing suspicious.  The Crown accepted Mr Nobakht had not himself carried any drugs into the country, but it is common, of course, for defence counsel to seek to emphasise positive points about their clients, even if the point is not in issue. 

The questioning of Detective Rodney Honan

[24]     Detective Rodney Honan was one of the police officers involved in executing a search warrant at Mr Nobakht’s house in Napier on 10 March 2005.  Afterwards he interviewed Mr Nobakht at the Napier Police Station.  His evidence was to the following effect:

Could you take us through please your recollection of the conversation you had with Mr Nobakht that afternoon? … I asked Mr Nobakht if he had seen Mr Sahati at the airport, the last time he came through and he informed me that he hadn’t.  However, I had seen Mr Nobakht at the airport via the close circuit television that is spread throughout the airport, and I said to Mr Nobakht that I had actually seen Mr Nobakht and Mr Sahati together.

How did he then react to that? … Mr Nobakht then agreed that he had seen Mr Sahati at the airport and that he had not spoken to him at all, or not for long.

Did you ask him anything about what he was doing at the airport? … Mr Nobakht sir, or Mr Sahati?

Following the point in the conversation where you say Mr Nobakht did acknowledge he was at the airport, did you ask him anything more about being at the airport? … I asked him how long he stayed at the airport for after arriving, and if he had spoken to Mr Sahati.

What did they speak about? … Mr Nobakht said then he thought Mr Sahati had come to pick him up, but then realised he hadn’t.  So I asked did they spend much time together at the airport to which he said no.  I then informed Mr Nobakht that he had been seen on the close circuit television with Mr Sahati for a period of time, approximately an hour at which Mr Nobakht informed me that yes, in fact he did share a meal with Mr Sahati at McDonalds, and from there I asked Mr Nobakht how he had left the airport and did he leave with anyone.  He informed me that he had left by himself.  However, I had been informed that he in fact left the airport with Mr Sahati in a taxi and informed him of this.  At which Mr Nobakht agreed that in fact, they had left the airport together and travelled into Auckland.

Did you ask Mr Nobakht any questions about Auckland itself, activities in Auckland? … I asked him if he had gone to the casino that evening and he informed me that he hadn’t.  However, on that particular evening I was sitting in the karaoke bar, the casino, where we saw Mr Hadfield spend the original few minutes on the video.  I was just out of camera shot from Mr Hadfield and not too far away from myself was Mr Nobakht.

Tell us again, how did Mr Nobakht originally answer your question about the casino? … He said he hadn’t gone to the casino.

Did you respond to that answer? … I informed Mr Nobakht that I had actually seen him at the casino that evening at which he said that he had in fact had gone to the casino and was watching the karaoke as he quite enjoyed the karaoke.

Did you ask him anything more about what he had done at the casino? … I asked him who he had spoken to, or did he in fact speak to anybody in the casino.  At this point Mr Nobakht said he had not spoken to anybody in the casino.  I informed him that I had seen him on close circuit television speaking with Mr Hadfield and Mr Sahati at the main entrance to the casino, outside and I was starting to become a bit impatient with Mr Nobakht and asked him why he was saying what he was saying ‘cos I didn’t believe he was telling me the truth.  However in this instance, Mr Nobakht said that he did not speak to anybody in the casino as I had asked him and did say that he spoke to Mr Sahati and Mr Hadfield outside the casino.  So I concede at that question there was a slight technical difference there.

Did the subject of Mr Hart, the lawyer, come up again? … Yes, Mr Nobakht requested he speak to Mr Hart. 

[25]     At the start of the trial, Mr Cooke had challenged the admissibility of this evidence on the basis that Mr Nobakht had not been properly given his rights and on the further basis that no contemporaneous note was kept.  A voir dire was held.  Mr Nobakht gave evidence.  He gave his version of the interview, which was substantially at variance with Detective Honan’s.  It contained none of the evasions or untrue answers Detective Honan had relayed.  Interestingly, the prosecutor did not cross-examine him about his version of the interview.  Rather, he concentrated on whether Mr Nobakht had been given his rights.  There were probably two interrelated reasons for that approach.  First, the evidential challenge had been mounted on the basis that Mr Nobakht had not been given his rights, not on the basis that Detective Honan’s account of the interview was wrong or untrue.  Secondly, the prosecutor no doubt wished to keep his powder dry for the trial itself, in what must have seemed the likely event that Mr Nobakht would elect to give evidence.

[26]     Winkelmann J ruled the evidence admissible.  She preferred the evidence of Detective Honan, whose evidence she found “consistent”.  She found Mr Nobakht’s evidence of the events of that day “self-serving”.  She formed “an adverse view as to his credibility”.  Winkelmann J did not regard Detective Honan’s failure to make a contemporaneous note of the interview as fatal.  She held the interview was “of short duration” and she found that Detective Honan had made a note “immediately after the interview”. 

[27]     At the trial itself, Mr Cooke cross-examined Detective Honan extensively about the events of 10 March.  He challenged him about whether he had properly given Mr Nobakht his rights; he challenged him about his failure to take a contemporaneous note; and he challenged Detective Honan’s account of what Mr Nobakht had allegedly said during the interview.  But what he did not do was put squarely to Detective Honan Mr Nobakht’s account (as he had given in the voir dire). 

[28]     When Mr Nobakht gave evidence, Mr Cooke did not ask him anything about the events of 10 March.  The prosecutor’s cross-examination with respect to that day was brief and limited to questions concerning what was found at Mr Nobakht’s house and in his wallet. 

[29]     We do not have a copy of Mr Cooke’s final address: it was not recorded.  But we do have, from the judge’s summing up, an account of what Mr Cooke said to the jury about Detective Honan’s evidence:

Finally, in relation to the evidence of Detective Honan, Mr Cooke asks that you consider that evidence carefully.  He suggests that Mr Nobakht was unlikely to have denied contact with Mr Sahati when Detective Honan had already told him that Mr Sahati was at the airport.  He also asks you to take into account Detective Honan’s statement that he did not prepare a full note of the interview until some time afterwards and he suggested that might be relevant to your assessment of how accurate Detective Honan’s recall would be.  Even if you were satisfied that Mr Nobakht did tell lies to Detective Honan, Mr Cooke asks you to consider the likely explanation that Mr Nobakht knew that Messrs Latifi and Sahati were in trouble from them to avoid getting into trouble.

Now you will recall that Mr Cooke also said to you that Mr Nobakht denied making the statements in question to Detective Honan.  I direct you that there is no evidence from Mr Nobakht to that effect and you should disregard Mr Cooke’s submissions on that point.

[30]     As we understand it, there is no dispute that Mr Cooke did say in his final address something to the effect that Mr Nobakht denied Detective Honan’s account of the interview, as the judge recorded. 

[31]     With that background, we now come to Mr Nobakht’s complaint.  Mr Jefferson submitted Mr Cooke had failed to put to Detective Honan Mr Nobakht’s version of the interview.  He then failed to adduce that evidence from Mr Nobakht when he gave evidence.  When Mr Cooke then told the jury Mr Nobakht denied Detective Honan’s version, it was inevitable the judge would remark on this in her summing up, as there was no evidential basis for the submission. 

[32]     When Mr Cooke gave evidence before us, Mr Jefferson asked Mr Cooke why he had not led evidence from Mr Nobakht as to his version of this interview.  Mr Cooke said he felt he had made it “abundantly clear” from his cross-examination of Detective Honan that his account of that interview had to be wrong.  He appeared largely to base that view on his having established the detective had not made a contemporaneous note.  He may have also had in mind a section of the cross-examination where he had put to the detective that Mr Nobakht would have had “to be a complete and utter fool” to have said some of the things the detective said he had said, in light of earlier advice the detective had given him to the effect that he had been seen on closed circuit television at the airport talking to Mr Sahahti.

[33]     Detective Honan’s evidence as to the 10 March interview posed a real problem for the defence.  It was potentially very powerful Crown evidence, as, if accepted, it showed Mr Nobakht lying repeatedly about what had happened at the airport and later at the casino.  Mr Cooke had seen Detective Honan under cross‑examination in the voir dire; he had also seen his client perform.  Although he had not at that stage seen the judge’s reasons for ruling Detective Honan’s evidence admissible, he knew she had so ruled, which must have meant she had accepted the veracity of the detective’s evidence and had rejected Mr Nobakht’s account. 

[34]     Mr Cooke was really faced with two options.  One option was not to put up Mr Nobakht’s version of the interview but simply to concentrate on challenging the detective’s account, given that he had not kept a contemporaneous note of the questions and answers.  The second option was to have a direct confrontation between the two accounts.  If that option were chosen, then Mr Cooke was bound to put to the detective Mr Nobakht’s version.  That would also mean, when Mr Nobakht came to give evidence, he would have to give that evidence and then be cross-examined upon it. 

[35]     Neither option can be labelled clearly right or clearly wrong.  There are arguments to be made for and against both options.  Mr Cooke chose the first.  We do not think he can be criticised for so doing. 

[36]     Having chosen the first, Mr Cooke was, however, limited in what he could submit to the jury.  He could legitimately submit to the jury they should be cautious about accepting Detective Honan’s account of the interview, given he had not kept a contemporaneous note of it.  But what he could not do is tell the jury that “Mr Nobakht denied making the statements in question to Detective Honan”.  When he did make that submission, he went a step too far, as there was no evidence to support the submission.  Winkelmann J was right to point that out to the jury in the course of her summing up. 

[37]     We do not accept, therefore, that there was necessarily any error on Mr Cooke’s part in not cross-examining Detective Honan about the contents of the 10 March interview and in not leading evidence from Mr Nobakht as to his version of that interview. That was a legitimate trial tactic; indeed, it may even have been the better course. Mr Cooke’s only error was the step too far in his final address. That led to the judge having to correct the submission, which she did, shortly and appropriately. We do not accept her brief comment, which was entirely justified, caused any undue prejudice to Mr Nobakht. It did not undermine Mr Cooke’s fundamental challenge to Detective Honan’s evidence, as recorded in the first part of the judge’s summing up: see at [29] above.

[38]     This complaint does not succeed. 

The questioning of Sarah Grime

[39]     Sarah Grime was the girlfriend of Mr Sahati.  She gave evidence for the Crown of the relationship between Mr Sahati, Mr Latifi, Mr Nobakht, and Ms Rye.  She was also able to link them to the man Mansoud in Japan.  She gave an unflattering portrait of Mr Nobakht, whom she described as “very domineering” towards Mr Sahati.  That was consistent with the Crown case that Mr Nobakht was in fact a leading figure in this importation, and indeed Mr Hadfield’s “overseer” on the flight from Japan. 

[40]     Mr Nobakht’s complaint under this head relates to the nature of some of Mr Cooke’s cross-examination of Ms Grime.  Mr Jefferson submitted the following two questions were inappropriate:

How would you describe your relationship with Mr Nobakht, in the time you had contact with him? … Reza and I have never really liked each other.  We have never really seen eye to eye on things.  He has always had a more like Eastern point of view on things, like I have always seen him as very very sexist and, you know, like I am not a feminist or anything like that but it’s things like that, the way he sees things really rubs my back up.

…

On the occasions that you would see Mr Nobakht, would he speak much to you? … No.  I remember, you know, I first met him and that, he would say the rule in his house was you had to speak Farsi, he wouldn’t want English and stuff like that.  He would loosen up a bit on that later on, but not much, and that wasn’t very good ‘cos I used to be the only non-Farsi speaker around there then and it wasn’t very nice for me.

[41]     As to that, Mr Jefferson submitted that Mr Nobakht’s Middle Eastern culture and general behaviour were not relevant to the trial. 

[42]     Mr Jefferson also submitted that some later questioning as to Mr Nobakht’s “cultural observations and general character” was also irrelevant, and led to “ultimately prejudicial evidence [being] given” by Ms Grime. 

[43]     In evidence before us, Mr Cooke explained why he had asked those questions.  He explained he was worried about how Mr Nobakht would present to the jury.  He said:

Mr Nobakht always wore black.  He wore black right through everything, black shirt, black coat, black everything, all through the depositions, all through the trial.  He presented in the way, he looked like a thug, like he could well have the capacity to run this operation and you must remember when the arrest of Sahati and Latifi occurred there was a quarter of a million bucks in notes on the bed.  … And we canvassed just how we were going to sell him and in the end it was decided to sell him through his religion, and that’s why I further comment here about the rules he had in his house about wearing slippers under the toilet.  … I mean we were really trying to sell him [as if] he walked through life holding one hand of God and he would never do anything that’s criminal.  … That was a joint strategy [between Mr Nobakht and me] and a lot of time was spent on it.  … I had to sell him because it was, you know, he was facing serious charges, and he looked like a thug in my opinion, which I had to sell him as a family man, a devout Muslim. 

[44]     With that strategy in mind, Mr Cooke then explained how he decided to deal with the evidence of Ms Grime.  He accepted, in answer to a question from Mr Jefferson, that it was clear from her evidence-in-chief that she “was not well disposed to” Mr Nobakht.  Mr Jefferson then asked why, in light of that, he persisted with his line of questioning.  He answered:

I wanted to show that her evidence couldn’t be believed, that she was prejudiced against my man, and that anything she did say would be slanted towards her boyfriend Sahati … I wanted her to get angry with me and she did to an extent.  … I wanted to show that she was prejudiced against Nobakht and via her prejudice, she herself was suspect and that was the line I took.

[45]     We consider Mr Cooke’s strategy was open to him; indeed, it appears to have been discussed and agreed in advance by Mr Nobakht.  It was legitimate to try to “sell” Mr Nobakht as a devout Muslim, which he appears to have been.  Whether one can legitimately infer from that status (if established) that he was less likely to be a drug dealer may be a matter of conjecture, but the line of questioning was not irrelevant.  It was a legitimate defence tactic to try to show that Ms Grime may be prejudiced against Mr Nobakht because of the way he had treated her in the past.  She obviously had taken exception to his cultural and religious practices and beliefs, and that was legitimately explored. 

[46]     Of course, other counsel may have handled Ms Grime’s evidence differently.  But Mr Cooke’s strategy was an available course; his pursuing it was not an error and did not lead to illegitimately prejudicial evidence coming in. 

Not telling Mr Nobakht about his election whether or not to give evidence

[47]     Mr Nobakht, in the affidavit he swore in support of this appeal, said:

Mr Cooke never explained to me about giving evidence.  Mr Cooke said I have to give evidence to explain myself.  Mr Cooke did not tell me that I did not have to give evidence, or prepare me for giving evidence.

[48]     That evidence was the basis for Mr Jefferson’s fourth complaint against Mr Cooke, namely that Mr Cooke had not informed Mr Nobakht of his election whether or not to give evidence. 

[49]     We can say immediately that part at least of what Mr Nobakht has asserted is incorrect.  It is clear, from his own evidence in cross-examination, that Mr Cooke did explain to him about giving evidence and did prepare him for that task.  Mr Nobakht accepted that, in the course of pre-trial preparation, he and Mr Cooke had prepared a long brief of evidence, which was added to from time to time as further instructions emerged.  He accepted that he had read various drafts and reworded them.

[50]     Mr Cooke said that, at depositions, he had explained to Mr Nobakht about his election to give evidence, but he acknowledged he had not repeated that advice later.  That seems to have been because, from an early time in their professional relationship, it became “a given” that Mr Nobakht would have to give evidence.  The Crown case against him was strong.  The only explanation he had given pre-trial was to Detective Honan, a most unsatisfactory account.  His only chance for an acquittal was to give his explanation of why he had been in Japan and as to the events of 8-9 February, in the hope that this account would raise a reasonable doubt in the jury’s mind.

[51]     We accept Mr Cooke should have repeated at trial the advice earlier given to the effect that Mr Nobakht had an election about giving evidence.  But we do not consider a miscarriage of justice arose from his failure to repeat that advice.  These are the reasons.

[52]     First, we are not convinced Mr Nobakht did not know about his right to elect whether or not to give evidence.  He is an intelligent man who had lived in New Zealand a number of years.

[53]     Secondly, it does seem clear he was bursting to give evidence, as Mr Cooke said he was.  He even brought into court boxes of apples, which he wanted to produce as exhibits to prove he was just a “humble apple-picker”, not a drug dealer.  Mr Cooke referred to Mr Nobakht as having been mentally preparing himself for cross-examination during the trial.  We note that, even now, Mr Nobakht does not assert that, had he been given his election, he would have elected not to give evidence.

[54]     Thirdly, in practical terms, Mr Nobakht had no real choice other than to give evidence if he wanted to be acquitted.  There was no plausible police statement on which defence counsel could rely.  Mr Nobakht faced a strong Crown case which required an answer. 

[55]     This challenge fails.

Introducing the fact Mr Nobakht was a refugee

[56]     We now move to Mr Nobakht’s complaints about questions he was asked in examination-in-chief.  The first complaint relates to it coming into evidence that he came to New Zealand in 1998 as a refugee.  This was, Mr Jefferson submitted, “irrelevant and prejudicial evidence”. 

[57]     We set out the questions and answers on this topic:

Where were you born? … Iran

When did you move to New Zealand? … 1998

How was it you came to live in New Zealand? … The difficulty I had with the Government in my homeland forced me to come to New Zealand.

So on what basis did you enter New Zealand? … As an asylum seeker, refugee.

How old were you when that happened? … 34 about 34 years old.

[58]     Mr Cooke went on to ask him where he stayed when he first arrived in New Zealand, about his later moving to Napier to work, and about his having to learn English from scratch. 

[59]     Frankly, this is an absurd complaint, which we can dispose of quickly.

[60]     First, this evidence was adduced in accordance with Mr Nobakht’s instructions.  His brief of evidence, on which he accepted he had worked, began with a description of why he had had to leave Iran and with his first obtaining refugee status, and permanent residence later on.

[61]     Secondly, Mr Cooke convincingly explained why he thought it important to mention Mr Nobakht was a refugee.  He said it was part of the strategy of “trying to sell him to the jury as a humble dumb apple-picker”.  He said he wanted to create sympathy in the mind of the jury and to suggest “that his man didn’t possess the acumen to run this scam, this importation”.  He accepted there was some risk that some members of the public might be prejudiced against refugees, but he hoped “the liberal half [of the jury would] say, give this man a fair go”. 

[62]     Thirdly, even if it is prejudicial to know a defendant is a refugee, which we do not in any event accept, the judge adequately dealt with possible prejudice in her summing up:

In this case, Mr Nobakht is Persian, he comes from Iran.  You have heard him give evidence that he claimed refugee status when he came to New Zealand.  It is easy to have stereotypes of about how people from a particular background behave or to have prejudice against people with different backgrounds, different language, and different values.  But in this case I ask you to strenuously put aside any racial stereotypes, preconceptions or prejudices you may have. 

Introducing evidence of “large sums of cash”

[63]     Mr Jefferson submitted Mr Cooke had wrongly led evidence about Mr Nobakht having “possession…of large sums of cash”.  The offending questions were said to be:

How did you manage to pay for that ticket on 31 January? … I paid it by cash.

And how was it you possessed cash? … First of all, I needed some cash money on me because I was going abroad.  I always carry cash because I have to pay my employees.  It is much easier for me than using card.

[64]     Mr Jefferson submitted that “the introduction in any conspiracy to supply drugs trial of the accused’s possession of large sums of cash would create prejudice”. 

[65]     The two questions need to be put in context.  It was Mr Nobakht’s case that a friend of his in Japan, a Mr Behrouz, had suggested they set up a joint venture whereby cars would be bought in Japan and exported to New Zealand.  Mr Nobakht was to be responsible for the New Zealand end, Mr Behrouz (along with a friend of his, a Mr Shahpour) for the Japanese end.  Profits were to be shared 50/50.  In pursuit of this venture, Mr Nobakht made his first trip to Japan on 14 January 2005, returning on 28 January.  The first trip was not a success: according to Mr Nobakht, he was let down by his friend, who tried to change the terms and conditions of their venture.

[66]     Two days after Mr Nobakht’s return, he received a call from Mr Behrouz, who apologised to him for his behaviour.  Mr Behrouz asked him to return immediately to Japan, saying he would meet the expenses.  Mr Nobakht the very next day travelled from Napier to Auckland and bought a ticket to Japan at Auckland Airport.  He flew out that day.  It was in this context that he explained how he had paid for the ticket in cash and gave his reason. 

[67]     It was undoubtedly suspicious that Mr Nobakht had paid for the ticket in cash.  (Indeed, everything about the sudden trip back to Japan was suspicious.)  It was inevitable the prosecutor was going to cross-examine Mr Nobakht about the sudden decision to return to Japan, the purchase of the ticket, and, in particular, about the later change in return date (so that, the Crown said, he would travel back to New Zealand with Mr Hadfield and the drugs).  Often, it is a good defence tactic where an accused is giving evidence to try to explain suspicious activity in examination-in-chief – as if the witness has nothing to hide.  Having prejudicial facts tumble out in cross-examination can seriously undermine the account presented in evidence-in-chief.  We see nothing untoward in Mr Cooke drawing out this fact in examination-in-chief rather than have it emerge in cross-examination. 

[68]     We also note in passing that the fact that the ticket had been paid for in cash was part of Mr Nobakht’s brief of evidence.  So too was his explanation for why he had so much cash on him. 

[69]     There is nothing in this point.

Pre-trial preparation

[70]     The final complaint against Mr Cooke related to his lack of pre-trial preparation.  We can deal with this point briefly.

[71]     First, none of the first six complaints, with which we have dealt, stem from a lack of preparation.  Mr Jefferson accepted that he could not point to anything wrong in the trial itself which could be said to have arisen from a lack of pre-trial preparation.  This is not a case, for instance, where, through lack of preparation, witnesses were not called who should have been called or where instructions were not followed or where the defendant’s evidence had not been briefed.  We are concerned only with whether the trial miscarried. 

[72]     Secondly, in any event, so far as we can see, Mr Cooke’s pre-trial preparation was adequate.  We find it unnecessary to go into detail concerning Mr Nobakht’s allegations against him in this period. 

Conclusion

[73]     For the reasons given, we are satisfied that Mr Cooke’s conduct at the trial did not lead to a miscarriage of justice. 

Prosecutorial conduct

[74]     Once again, we shall deal with counsel’s alleged misconduct, this time Mr Ronayne’s, in the order in which the criticised tactics occurred at trial.  Mr Jefferson does not criticise the way in which Mr Ronayne conducted the Crown case.  Rather, the criticism is focused on Mr Ronayne’s cross-examination of Mr Nobakht and on his closing address. 

[75]     Mr Jefferson submitted that Crown counsel’s task was accurately summarised in R v Hodges CA435/02 19 August 2003 at [20]:

We return to the proper role of counsel when representing the Crown in a criminal trial.  Counsel is entitled, indeed expected, to be firm, even forceful.  Counsel is not entitled to be emotive or inflammatory.  The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically.  Although different counsel will naturally and appropriately have different styles and different methods of addressing the jury, the Crown’s closing address should, at least at some stage, traverse the legal ingredients of the count or counts in the indictment, and call the jury’s attention to the evidence which the Crown says satisfies the onus and standard of proof in relation to each ingredient, and in particular those which are the subject of dispute.  Crown counsel are important participants in the dispassionate administration of criminal justice.  They are entitled to contend forcefully but fairly for a verdict of guilty; but they must not strive for such a verdict at all costs.

[76]     The court went on to cite other cases to similar effect, including the two Privy Council decisions of Randall v R [2002] 1 WLR 2237 and Benedetto v R [2003] 1 WLR 1545. Mr Lawry, for the Crown on this appeal, accepted the above summary of the law. The issue between him and Mr Jefferson was as to which side of the line this prosecutor’s conduct fell.

Cross-examination about Mr Nobakht’s trips to Auckland

[77]     Very early in his cross-examination, Mr Ronayne asked the following questions:

The day you were arrested your wife made a statement to the police, didn’t she? … Yes.

You used to make regular trips to Auckland just to buy Iranian food, didn’t you? … Yes, sometimes.

That was a bone of contention between you and your wife, wasn’t it?  You and your wife disagreed over those regular trips to Auckland just to buy food? … No that is not true.

You only took your wife to Auckland once, didn’t you? … No.  Not correct.

One trip when you stopped and ate McDonalds and then drove straight home again, do you recall that trip? … Yes.

You had your daughter with you? … Yes.

All the way to Auckland, ate McDonalds, you left the restaurant for half an hour, came back, back to Napier? … Yes.

Was that a business trip? … No, it wasn’t.

Where did you go for half an hour? … I went to see a friend who we were supposed to go and stay with him.

No doubt that plan fell through? … No, it didn’t happen.  The reason behind that was ‘cos he and his wife had argument, and we didn’t want to stay with them.

[78]     Mr Jefferson submitted that this questioning “was not relevant to the trial” and “was illegitimately prejudicial”. 

[79]     Mr Lawry made no submissions on this complaint. 

[80]     We have studied this line of questioning in its context.  It does not appear to relate to any cross-examination which preceded it.  Nor can we see how it was later built upon.  We are inclined to agree with Mr Jefferson that it appears to be irrelevant.

[81]     Irrelevant evidence is, of course, inadmissible.  But it does not follow that every piece of irrelevant evidence gives rise to prejudice.  We are quite satisfied that no prejudice arose from these questions.  They led nowhere, and accordingly were not referred to again during the trial.  In all probability, the jury, in a long trial of this nature, put this evidence completely out of their minds.

Questions concerning who would be defence witnesses

[82]     Mr Nobakht’s second complaint under this heading related to four questions he was asked about other potential defence witnesses.  First, the prosecutor asked these questions:

Is [Mr Behrouz] going to come from Japan to give evidence in this trial? … Yes.

He is giving evidence? … Yes, if I can make contact with him, yes he will.

What about the other guy, Shahpour, are we going to hear from him? … He is a businessman.  He has a business in Japan.  I cannot make a promise or say anything on his behalf, but anybody can go and ask him through his business.

[83]     Later, the prosecutor asked, with reference to Mr Nobakht’s wife:

And you are not calling her as a witness, ‘cos she has been in the courtroom, are you? … She has been here, yes.

[84]     In the event, neither Mr Behrouz nor Mr Shahpour nor Mr Nobakht’s wife gave evidence. 

[85]     So far as we are aware, neither the prosecutor nor Mr Cooke made any reference to the absence of these witnesses either in later questioning or in their final addresses.  The judge did, however, make a reference to these questions in her summing up:

In relation to Mr Nobakht’s evidence you will have heard in cross‑examination by the Crown as to whether his wife or some other people associated with his car dealing in Japan were to give evidence and in relation to that line of cross-examination I just want to reiterate to you that there is no obligation on Mr Nobakht to call these witnesses, because, as I have said, he does not assume and does not have any part in this trial the responsibility to prove himself innocent.  So the fact he did not call these witnesses does not add to the Crown case against him.  The burden remains on the Crown from the beginning of the trial to the very end.

[86]     Mr Jefferson submitted the prosecutor’s questioning was “improper”, as it suggested Mr Nobakht was “under an onus to call evidence and to prove what [he] was saying”.  He acknowledged what the judge had said in her summing up and submitted that “ordinarily such a direction would have remedied the [prosecutor’s] impropriety”.  He submitted, however, it was questionable whether the direction was sufficient to remedy the impropriety in this case, “given the extent of the prosecution’s sustained attack on [Mr Nobakht's] credibility”. 

[87]     We deal first with the position concerning Messrs Behrouz and Shahpour.  There can be no doubt that they would have been material witnesses had they been called.  An issue in the trial was what Mr Nobakht had been doing in Japan between 31 January 2005 and his departure on 7 February 2005.  It was the Crown case that he was in Japan arranging the importation into New Zealand of the methamphetamine.  The defence countered the Crown case by an assertion that Mr Nobakht was in Japan, with Messrs Behrouz and Shahpour, working on the joint venture to send cars from Japan to New Zealand.  Clearly, the evidence of Messrs Behrouz and Shahpour, if it corroborated Mr Nobakht’s evidence, would have significantly weakened the Crown case as to what Mr Nobakht was doing in Japan. 

[88]     The law is perhaps a little murky as to the inferences that can be drawn from the failure to call a material witness.  What appears to be the current New Zealand position was enunciated in the lead judgment (delivered by Glazebrook J) in Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 (CA):

[153] … There is no rule [as to what inferences can be drawn from a party’s failure to call material witnesses].  Rather, there is a principle of the law of evidence authorising (but not mandating) a particular form of reasoning.  The absence of evidence, including the failure of a party to call a witness, in some circumstances may allow an inference that the missing evidence would not have helped a party’s case.  In the case of a missing witness such an inference may arise only when:

(a)the party would be expected to call the witness (and this can be so only when it is within the power of that party to produce the witness);

(b)the evidence of that witness would explain or elucidate a particular matter that is required to be explained or elucidated (including where a defendant has a tactical burden to produce evidence to counter that adduced by the other party); and

(c)the absence of the witness is unexplained. 

[154] Where an explanation or elucidation is required to be given, an inference that the evidence would not have helped a party’s case is inevitably an inference that the evidence would have harmed it.  The result of such an inference, however, is not to prove the opposite party’s case but to strengthen the weight of evidence of the opposite party or to reduce the weight of evidence of the party who failed to call the witness. 

[89]     That statement of principle closely mirrors what Glass JA said in Payne v Parker [1976] 1 NSWLR 191 at 200-201, as set out by Glazebrook J at [155] of her judgment.

[90]     In order to ascertain whether the circumstances exist for the inference, there has to be evidence, and in particular evidence as to the availability of the missing witness.  Such evidence may be given in evidence-in-chief by the party who wants to explain the absence of the witness.  The witness’s availability may also be the subject of appropriate cross-examination.

[91]     Ithaca was, of course, a civil case, but the same principle applies in criminal cases, although, in practice, with greater caution.  It is the principle underlining cases like Trompert v Police [1985] 1 NZLR 357 at 358 (CA), R v Gunthorp [2003] 2 NZLR 433 at [142]-[143] (CA), and R v Haig (2006) 22 CRNZ 814 at [101]‑[104] (CA), per William Young P and Chambers J.  The reason for caution stems from the fact that this principle of the law of evidence rubs up against the fundamental right of an accused not to be compelled to be a witness, now enshrined in s 25(d) of the New Zealand Bill of Rights Act 1990.  See generally the excellent discussion on this topic in Rishworth & others The New Zealand Bill of Rights (2003) at 654-656. 

[92]     This court noted in Haig at [104](d) that the Trompert approach was “applied fairly conservatively in New Zealand”.  The court said: “Judges seldom comment adversely when an accused has not given evidence.”  So too they seldom comment about defence witnesses who might have been called.  There are two main reasons for that conservative approach.  First, judges are concerned not to say anything which might undermine the principal direction as to onus and standard of proof.  Secondly, the “particular form of reasoning” which is authorised (but not mandated) in situations of missing evidence is subtle, as the extract from Ithaca (quoted at [88] above) shows. If a judge were to direct a jury as to inferences that can be drawn from a party’s failure to call a witness, he or she would have to be careful to direct not only on the three criteria that must be established before the absence of a witness becomes material but also on the nature of the inference to be drawn from the failure to call a witness. In most cases, judges conclude it is safer not to enter this particular minefield and instead instruct juries to decide the case on the evidence they have heard and not to speculate on what others might have said if called.

[93]     With that background, we now analyse the prosecutor’s questions with regard to the availability of Messrs Behrouz and Shahpour.  It follows from the above discussion that Mr Ronayne was quite entitled to ask those questions.  Presumably they were the first steps towards establishing that it was within Mr Nobakht’s power to produce these witnesses: criterion (a).  As it turns out, Mr Ronayne did not pursue the line of enquiry, with the consequence that the issue died away.  He did not later assert any inference to be drawn from the defence’s failure to call either man.  In those circumstances, there was no impropriety in the way the prosecutor dealt with this issue. 

[94]     The judge’s handling of the matter was also correct.  She specifically instructed the jury that the fact Mr Nobakht had not called these witnesses did not add to the Crown case against him.

[95]     The question concerning Mr Nobakht’s wife needs separate consideration.  This arises from s 366(2) of the Crimes Act 1961, which reads as follows:

Where a person charged with an offence refrains from calling his wife or her husband, as the case may be, as a witness, no comment adverse to the person charged shall be made thereon.

[96]     The prohibition against adverse comment means, in practice, that the prosecution cannot comment at all on the failure of an accused’s spouse to give evidence.  It follows that the prosecution should not lead evidence, from their own witnesses or by cross-examination of defence witnesses, as to whether the accused’s spouse can give or will be giving evidence.  A question asked of a witness can amount to a comment: see R v Sheehan [1944] NZLR 874 (CA), and see the useful discussion in Robertson (gen ed) Adams on Criminal Law (looseleaf ed) at [EC15.03] (4).

[97]     Section 366(2) does not prohibit, however, non-adverse comment.  That means the defence can give an explanation as to why the accused’s spouse is not giving evidence, and, therefore, may call evidence to substantiate that explanation.  If that course is taken, then it may be the prosecution is entitled to cross-examine on that explanatory evidence: that does not arise in the present case, and we leave to another day the extent to which such cross-examination may be permitted. 

[98]     In this case, the defence chose (as was its right) not to give any explanation for the failure to call Mr Nobakht’s wife.  In those circumstances, Mr Ronayne should not have asked the question concerning Mr Nobakht’s wife.  If Mr Cooke was worried about the question, he could have asked the judge to give a ruling concerning it.  Instead, he adopted a slightly different approach.  He began his re-examination of Mr Nobakht with the following questions:

Mr Nobakht, do you have a partner, Hannah Reedy? … Yes.

And to your knowledge, was she served with a witness subpoena by the Crown? … Yes.

Are you aware when that subpoena was served? … Are you talking about this trial?

Yes? … I believe it was two or three months before the commencement of this trial. 

[99]     This exchange was not mentioned by counsel when addressing us on this appeal.  It may be Mr Cooke had erroneously thought Hannah Reedy was merely Mr Nobakht’s de facto partner: his use of the word “partner” rather than “wife” may suggest that.  If he had thought that, he would have appreciated s 366(2) did not apply as it covers only lawful spouses: R v Turner CA439/95 25 July 1996.  Presumably the point of Mr Cooke’s questions was to suggest the Crown were unwilling to call Hannah Reedy because of the damage she might do to the Crown case.  If that was the intention, it appears not to have been developed. 

[100]   Mr Cooke’s re-examination did, however, provoke a brief response in Mr Ronayne’s address to the jury.  He submitted to the jury it was just speculation as to what Mr Nobakht’s wife would have said, and pointed out that, in any event, she was not a compellable witness.  Those submissions were properly made. 

[101]   Following this, the judge gave the direction to which we earlier referred.  We consider that dealt with the matter adequately and removed any possible harm or prejudice that may have arisen from Mr Ronayne’s solitary question in cross‑examination.  It also fairly dealt with Mr Cooke’s questions in re-examination, without specifically drawing attention to them. 

[102]   In summary, therefore, while there may have been a technical breach of s 366(2), it was admirably dealt with by the judge.  Not every breach of s 366(2) – or, for that matter, s 366(1), now s 33 of the Evidence Act 2006 – gives rise to a miscarriage of justice justifying a quashing of convictions: R v Smiler CA2/05 14 June 2005 at [28]-[45], and the cases there cited. 

Cross-examination about Mr Nobakht’s return to Iran

[103]   During the course of his cross-examination of Mr Nobakht, Mr Ronayne referred to Mr Nobakht’s having obtained refugee status.  He then pursued the following line of questioning:

And you were granted some sort of refugee status, were you? … Yes.

Is it the case that it would be dangerous for you to go back to Iran because of that status that you claimed? … Yes.

Would your life be in danger, if you went home? … Yes.

And that is – the Government regime in Iran has not changed since you came to New Zealand, has it? … No.  The same Government.

So why have you been back to Tehran? … Why –

Why have you been back to Tehran, when your life is in danger in Tehran, that you have just told us? … My mother’s life, she was not very well and she was very close to death, that is why I had to go there to visit her.

I put it to you you have not told the truth about you being in danger back in Iran, you are not telling the truth about that? … In relation to this I have explained everything to Immigration department.  I have explained it all in detail, everything to do with that.

How did explaining it to the NZ officials make it safe for you to go back to Iran, when you have just told us that your life is in danger back there? … I have provided sufficient explanation to them – the authorities – to be able to go back to Iran.

Well is it the case that you don’t need refugee status anymore? … Yes, I do.

Why, if you were able to travel back to Tehran, on Air Tehran? … You are asking me a question which is not related to this, which I am not able to open it up and explain it to you ‘cos I found it to be personal.  This also relates to the safety of myself and my family members too.

So we take it from that that you are refusing to answer my question? … This is as I said earlier, a very personal question and relates to the safety of my family and myself.  This is open court and I am not aware of the people present here, to who do they belong to?

So you are still in so much danger that you are refusing to answer my question in this court, is that the position? … That is correct.

[104]   At this point, the transcript records: “JURY RETIRES.  (Discussion follows)”.  The transcript does not make clear whether the interruption was a result of an objection by Mr Cooke or an intervention by the judge.  It does not appear that any ruling was given: if it was, it has not been recorded.  The evidence before us does not assist on this point: neither Mr Nobakht nor Mr Cooke referred to this matter in his affidavit, and neither was cross-examined about it.  We note that, after the intervention and after the jury’s return, Mr Ronayne moved to another topic.  From that, we infer that, at the very least, the judge discouraged Mr Ronayne’s continuing with this line of questioning. 

[105]   It appears the point of the cross-examination was to damage Mr Nobakht’s credit.  Presumably, Mr Ronayne was attempting to show that Mr Nobakht either had lied when he sought refugee status or was lying now when he claimed he remained in danger from the Iranian authorities.

[106]   There can be no doubt this was cross-examination as to credit: the cross‑examination did not relate to a matter in issue in the trial.  As such, s 5(4)(b) of the Evidence Act 1908 was engaged.  That provision, which has given rise to notoriously difficult jurisprudence and fine judgment calls, limits the scope of cross‑examination of an accused as to his or her credit. 

[107]   We observe first that, before embarking on this cross-examination, the prosecutor should have sought the judge’s leave: R v Fox [1973] 1 NZLR 458 at 459 (CA). He did not do so.

[108]   Had he done so, the judge would first have had to turn her mind to the question of whether the accused had put his character in issue.  That requirement stems from s 1(f)(ii) of the Criminal Evidence Act 1898 (UK), which provision has long been held in this country to inform the exercise of discretion under s 5(4)(b) of our Evidence Act 1908: see R v Clark [1953] NZLR 823 (CA) and R v Anderson [2000] 1 NZLR 667 (CA). In the latter case, this court noted that it is often a fine line between occasions where the accused has put his or her character in issue and those where this has not occurred: at [34].

[109]   Had Mr Nobakht put his character in issue?  A useful summary of the principles involved is contained in Mathieson (gen ed) Cross on Evidence (looseleaf ed) at [14.13]:

Generally speaking, the accused’s own evidence of his or her character takes the form of allusions to his or her innocence or praiseworthy past.  The decisions certainly do not indicate any great reluctance on the part of the Courts to hold that the accused has put his or her character in issue by such a reference.  A man’s allegations concerning his regular attendance at mass, his assertion that he had been earning an honest living for a considerable time, and his affirmative answer to the question whether he is a married man with a family in regular work, or a claim to be a benevolent family man, have been treated as instances in which the shield provided by s 1(f) would be thrown away.  [Footnotes omitted.]

[110]   We consider Mr Nobakht had put his character in issue.  We have referred earlier to the strategy Mr Cooke and Mr Nobakht developed as to how Mr Nobakht was to be sold to the jury: see at [43] and [45] above.  The plan was to sell him “as a family man, a devout Muslim”, as one “[walking] through life holding one hand of God and [as someone who] would never do anything that’s criminal”.  There can be no doubt that strategy was carried into effect.  Mr Nobakht had given evidence about coming to New Zealand as a refugee, learning English, getting a job, dutifully paying his taxes, marrying a New Zealander, and becoming a father.  He also gave evidence showing his adherence and devotion to the Muslim faith, an aspect also reinforced in Mr Cooke’s cross-examination of Ms Grime.  We consider the judge, if her permission had been sought, would have held that Mr Nobakht had thrown away his shield. 

[111]   We are less certain, however, whether the judge would or should have permitted this particular line of cross-examination.  The problem with this particular line of questioning was its potentially open-ended scope.  It was not like asking an accused whether he had a particular prior conviction.  The suggestion – at least hinted at – that he might have lied in his refugee application could not sensibly be answered without obtaining the refugee file, which the prosecutor would not have had.  The alternative suggestion that Mr Nobakht was lying now when he said he still feared for his life in Iran is equally problematic.  In order to assess whether that was a lie, one would need to know when the return visit took place – that was never stated – and one would need to know the circumstances under which it occurred.  One would also need to know more about the nature of the threats faced back in the 1990s.  The prosecutor’s suggestion that the Iranian regime had not changed is not necessarily decisive: the threat may have originated from a small group who were no longer influential in Iran.  In any event, threats can fade with time. 

[112]   We suspect that the judge, had she been asked to sanction this line of cross‑examination, would either have prohibited it or would have permitted it only in much truncated form. 

[113]   We shall return to this topic when undertaking our overall evaluation of the fairness of the trial, as we accept Mr Jefferson’s submission that Mr Nobakht’s complaints should be evaluated collectively, not individually. 

[114]   We may add, however, at this point that we do not consider either Mr Cooke or the judge can be criticised for the way in which they dealt with this line of questioning.  First, this has always been a tricky area of the law.  (Hopefully it will be less problematic under the new Evidence Act 2006, ss 37 and 38.)  It would not have been easy immediately to put one’s finger on whether this line of questioning was objectionable and the ground of objection.  As well, initially at least, both Mr Cooke and the judge would have thought that the questioning in some way related to Mr Nobakht’s evidence about having come here as a refugee.  As it turns out, the questioning was but loosely tied to the evidence-in-chief; that evidence was no more than a prop (not even a vital prop) for a line of questioning as to credit. 

[115]   Further, either Mr Cooke or the judge or both (the record does not disclose who) registered a concern before too long.  The matter was not pursued further, and indeed no further reference was made to this evidence for the rest of the trial. 

[116]   In addition, the judge did give the warning about prejudice which we have quoted above at [62]. Mr Jefferson acknowledged this partly dealt with the “problem”, as he saw it, although he submitted it was “doubtful” whether that direction would have “remedied the devastating effect of the Crown’s attack on [Mr Nobakht’s] credibility”.

Sarcasm and ridicule

[117]   Mr Jefferson’s fourth submission under this head was summarised in this sentence of his written submissions: “Crown counsel exceeded the bounds of permissible prosecutorial conduct in the persistent use of sarcasm and ridicule towards and of [Mr Nobakht] both in cross-examination and in the closing address.”  Mr Jefferson then went on to give examples from the cross-examination and from the closing address.

[118]   We do not need to go into detail as we are satisfied the prosecutor did not cross the line. 

[119]   Within the principles enunciated in Hodges (and quoted above at [75]), there must be latitude for different styles and different methods, both of cross-examination and of addressing the jury, as this court expressly noted. 

[120]   Mr Nobakht chose to give an explanation for his trips to Japan and for his rather unusual behaviour on 8 February 2005 and subsequently.  That account, if plausible, would have raised a reasonable doubt as to the Crown case.  It was the prosecutor’s duty to test the plausibility of that account.  A prosecutor, like his or her defence counterpart, is entitled to use appropriate advocacy skills, provided the outcome could be categorised as neither emotive nor inflammatory.  It is true Mr Ronayne’s questions emphasised the implausibility of Mr Nobakht’s account, but, in our view, not to an unfair degree.  We think it noteworthy that neither the experienced defence counsel nor the judge sought to intervene.

[121]   Mr Jefferson highlighted for criticism only four brief passages from the prosecutor’s closing address.  One of those described Mr Nobakht’s account on a particular point as “ridiculous”.  Two of the passages specifically asserted Mr Nobakht had lied on particular points.  Crown counsel was entitled to make those submissions.  Indeed, the judge in this case considered that some of the lies (if the jury found them to be such) were of a character that they could provide support for the Crown case.  Mr Jefferson did not challenge the appropriateness of that direction on the facts of this case. 

[122]   In summary, therefore, we do not consider the prosecutor unfairly ridiculed Mr Nobakht in cross-examination or his case in his final address. 

Referring to the drug importation as being “ethnic-based”

[123]   Mr Jefferson’s final submission related to a specific comment Mr Ronayne made in his final address about this drug importation being “ethnic-based”.  He submitted this comment “compounded the prejudice” which had already occurred through the wrongful introduction of evidence relating to Mr Nobakht being of Middle Eastern extraction.  Further, he submitted Mr Ronayne’s submission as to the drug importation being “ethnic-based” was “factually questionable” as neither Mr Hadfield nor Ms Rye was Iranian. 

[124]   Mr Ronayne’s comment must be put in context.  He had described the Crown case against Mr Nobakht as one involving circumstantial evidence.  He employed the common analogy used by prosecutors and judges of the rope of many strands.  After he had dealt with the thirteenth strand in what he described as “the rapidly strengthening rope”, he moved to his fourteenth strand.  (The following quote is taken from the notes Mr Ronayne used: as already explained, the court itself kept no record of either final address.) 

This is an ethnic-based drug importation featuring Iranians and Nobakht is Iranian.  This has nothing to do with race per se but rather probabilities and as Detective Sergeant Sowter said, as an expert in this case, drug syndicates can be ethnic-based.  He wasn’t challenged on that.  It is not, of course, just that these men are Iranian, but also that they have at times lived and worked in the same small communities and have known each other for years.  Consider this: Hadfield was recruited by an Iranian in Thailand; Latifi is an Iranian; Sahati is an Iranian; Mansoud is an Iranian; and so too is Mr Nobakht.  Strand fourteen! 

[125]   When that passage is seen in context, there is nothing objectionable about it.  The point Mr Ronayne was making was entirely valid.  He was not emphasising race.  The submission to the jury was neither emotive nor factually inaccurate.  He did not assert Mr Hadfield or Ms Rye was Iranian, although each, of course, had an Iranian connection.

[126]   In so far as Mr Jefferson’s submission is based on a link to his earlier attack on the admissibility of evidence as to Mr Nobakht’s Middle Eastern background, the submission must fail, as we have found that challenged evidence to have been admissible. 

[127]   We do not accept this challenge to the prosecutor’s conduct. We also note that the judge specifically directed the jury to “put aside any racial stereotypes, preconceptions or prejudices” they might have: see at [62] above. That, in our view, would have ensured no jury misconstrued the point Mr Ronayne was making when developing the fourteenth strand of his circumstantial evidence rope.

Trial judge errors

[128]   Mr Nobakht’s final group of complaints related to things the trial judge either did or did not do.  All these alleged errors relate back to his allegations against his trial counsel or the prosecutor.  Because of that, we can deal with the five complaints shortly.

[129]   First, Mr Jefferson submitted the judge should have “immediately directed” after Mr Cooke wrongly introduced evidence concerning Mr Nobakht’s “Middle Eastern culture and character”, prompting similar questions from the Crown.  There is nothing in this point.  The evidence in question first arose during Mr Cooke’s questioning of Ms Grime.  We have already held that Mr Cooke did not make an error in asking those questions.  It would have been wholly inappropriate for the judge to have given any sort of direction at that point.  What would she have said?  The judge’s direction in the course of her summing up about the dangers of racial stereotyping and racial prejudice was all that needed to be said. 

[130]   Secondly, Mr Jefferson submitted there was “no direction” on Mr Cooke’s having introduced evidence about Mr Nobakht’s “carrying large sums of cash and [his] business practices, and Crown counsel’s cross-examination on this”.  He did not specify what direction should have been given.  We have already held that this evidence was relevant.  It required no special direction. 

[131]   Thirdly, Mr Jefferson submitted there should have been an “immediate direction” after Crown counsel asked Mr Nobakht whether he “would be calling witnesses to give evidence”.  We have already held there was nothing improper in the questions relating to Messrs Behrouz and Shahpour.  So far as the question relating to Mr Nobakht’s wife is concerned, we consider the judge dealt with that adequately in the summing up.

[132]   Mr Jefferson’s fourth complaint related to the cross-examination about Mr Nobakht’s return to Iran. On this, Mr Jefferson submitted, the judge fell into error as she did not intervene quickly enough and give an immediate direction. While we have concerns about this part of the cross-examination, which we shall evaluate shortly, we have already indicated we do not consider there can be any criticism of the judge as to how she dealt with the problem: see at [114] above.

[133]   Finally, Mr Jefferson submitted the judge should have given a direction on the prosecutor’s “sarcasm and ridicule” of Mr Nobakht.  Again, he did not specify what direction should have been given.  But in any event, we have found that neither the cross-examination nor the prosecutor’s final address exceeded proper prosecutorial limits. 

[134]   We are satisfied none of these alleged errors has been made out.

The effect of what happened at sentencing

[135]   The final issue on this appeal was raised by the Crown.  Mr Lawry submitted that, at sentencing, Mr Nobakht confessed he was guilty.  Further, he received a specific reduction in sentence on the grounds of his late admission of guilt and remorse.  Mr Lawry’s argument was that, even if there were some errors on counsel’s or the judge’s part (which he did not accept), there could scarcely be said to have been a miscarriage of justice when Mr Nobakht now admitted he was guilty of the crimes charged.

[136]   There is a dispute as to what happened leading up to sentencing and at the sentencing itself.  We must first resolve that dispute before we can evaluate Mr Lawry’s submission.  In this regard, we heard evidence from Messrs Nobakht and Cooke.  Although we did not have a report from Winkelmann J, comments in her sentencing notes are instructive. 

[137]   Winkelmann J, following Mr Nobakht’s conviction, remanded him in custody pending sentence.  In his affidavit, Mr Nobakht said:

After trial Mr Cooke said he would come to see me before my sentencing and said to me to tell my probation report person that I was guilty and accept everything and write this in a letter to the judge.  That this would lower my sentencing and said don’t worry we are still going to appeal.

[138]   Mr Cooke denied saying any such thing.  We have no hesitation in accepting Mr Cooke’s evidence on this point.  In circumstances where a client was maintaining his innocence and planning to appeal, it would be extraordinary for a defence counsel to advise him to tell the probation officer he was guilty.  In this regard, we note Mr Nobakht did not admit he was guilty to the probation officer.  On the contrary, the probation report states that Mr Nobakht “continued to maintain his innocence”.  Further, any criminal lawyer would know that an admission of guilt would almost certainly preclude any appeal against conviction.  It is simply unbelievable that Mr Cooke would have told Mr Nobakht to admit guilt while at the same time advising him an appeal against conviction would be pursued. 

[139]   Mr Nobakht also asserted in his affidavit:

Mr Cooke did not come to see me before sentencing.  I did not have any opportunity to ask questions before sentencing or tell Mr Cooke what I wanted to say. 

[140]   Under cross-examination, however, it became clear Mr Cooke had seen Mr Nobakht prior to sentencing and advised him about the process.  Mr Nobakht said he expected Mr Cooke to make a second visit, which did not occur.  Even if that is so, the fact remains there was a visit at which the sentencing process was discussed.  Mr Cooke said that, when he saw Mr Nobakht, Mr Nobakht continued to maintain his innocence (just as he did to the probation officer).  Mr Cooke said he prepared his sentencing submissions on that basis.  We accept that evidence.  Mr Cooke’s written submissions listed mitigating factors which he urged the judge to take into account: an admission of the offending and remorse were not among them. 

[141]   The day before sentencing, Mr Nobakht, with the assistance of another prisoner, prepared a letter to the judge.  (It is common ground Mr Cooke played no part in the preparation of this letter.)  The letter to the judge said in part:

I accept the verdict of the jury at my trial.  I do, however, dispute some of the facts which led to that verdict. 

I was not the principal offender in the matters leading to my conviction.  I got into the company of some very bad people, who, I thought, at the time were friends.  They were quite clearly not friends and I regret ever having associated with them. 

This is the first offence I have committed in my nine years in New Zealand. 

…

I now am very ashamed of my actions which are now causing my family such pain and hardship.  I also feel shame at standing before you for the crime I have been convicted of. 

[142]   This letter was given to Winkelmann J on the day of sentencing.  Exactly how it got to her is still somewhat confused, notwithstanding the oral evidence we heard on this topic.  In the end, we have decided the precise details do not matter; had we considered otherwise, we would have sought a report from the judge. 

[143]   Mr Cooke’s recollection is that he did not give the letter to the judge.  That would seem to mean that Mr Nobakht must have given the letter to a security guard to give to the judge.  While it would be unusual for that to happen, it is not impossible. 

[144]   At the sentencing itself, counsel made their sentencing submissions.  In Mr Cooke’s case, these submissions had been prepared and were delivered on the basis that Mr Nobakht continued to assert his innocence.  When he finished, the judge asked for clarification as to whether Mr Nobakht was accepting he was guilty.  She referred to the letter she had been given.  According to Mr Cooke, he had not previously seen that letter.  When he disclosed that, the judge either gave him the letter to read or read out the relevant parts.  According to Mr Cooke, the judge wanted clarification because, if Mr Nobakht did now acknowledge his offending and if he was now genuinely remorseful, she would be prepared to give a discount in sentence on that basis. 

[145]   Mr Cooke at that point sought instructions from Mr Nobakht. 

[146]   There is a difference in recollection between Mr Nobakht and Mr Cooke as to what happened next.  Mr Nobakht’s version is roughly as follows.  Mr Cooke said to him that, if he accepted everything, we would have a chance of appeal.  He said to Mr Cooke, “If this is your advice, I’ll accept that.”  He then recollects Mr Cooke saying to the judge, “We accept everything and we have no objection to any matters at all.” 

[147]   Mr Cooke’s version was as follows.  He said that the judge had indicated that, if Mr Nobakht acknowledged his wrongdoing, he would get a credit of 12 months’ imprisonment.  Mr Cooke said that the conversation between him and Mr Nobakht took place in court.  He said he first asked Mr Nobakht whether he understood “what the dialogue from the sentencing judge had been, namely that he would get a credit on the length of his term of imprisonment if this issue over remorse was addressed”.  Mr Cooke said Mr Nobakht answered “Yes”.  According to Mr Cooke, Mr Nobakht added, “My term of imprisonment will be reduced if I plead guilty.”  Mr Cooke said he was taken aback by the suggestion of a change of plea.  He said to Mr Nobakht, “If you plead guilty, this is the end, no appeals, nothing, it’s all over.”  Mr Nobakht replied, “No, I will plead guilty.”  Mr Cooke asked him if he was sure, and Mr Nobakht replied that he was.  Mr Cooke then advised the judge that Mr Nobakht did accept his guilt. 

[148]   Before we evaluate that exchange, we quote several passages from Winkelmann J’s sentencing notes:

[6]… at the time that the [pre-sentence] report was written, you continued to deny any involvement in the offending, but this morning I have had placed before me a letter from you in which you admit your involvement in the offending.  You say, however, that it occurred because of associating with bad people and you assure me that you will never offend again.

…

[10]Your counsel, Mr Cooke, accepts that a starting point of 11 years is appropriate because of the sentence imposed on your co-offender, Sahati.  Mr Cooke raises in mitigation the absence of prior convictions, and your family commitments.  He submits that you are most unlikely to reoffend given your character and also now your acknowledgement of your involvement in the offending. 

…

[18]I propose to allow a reduction in sentence of one year in view of the absence of previous convictions and in view of your acceptance of your involvement in the offending and your remorse.  [Emphasis added.]

[149]   There can be no doubt that the sentencing proceeded on an assumption that Mr Nobakht admitted his involvement in the offending for which he had been found guilty.  Any doubts about the construction to be placed on his letter were laid to rest at the sentencing itself.  So far as what took place between Mr Nobakht and Mr Cooke is concerned, we are not satisfied that either version can be completely correct, although clearly Mr Cooke’s version must be much closer to what actually happened.  Mr Nobakht’s version simply does not make sense in light of the issue that had arisen. 

[150]   Having said that, however, we are concerned about Mr Cooke’s conduct on the day of sentencing.  If, contrary to Mr Cooke’s recollection, Mr Nobakht gave the letter to him to give to the judge, then he should not have handed it up without studying it carefully himself.  If he had read it carefully, he would have immediately realised the significance of what Mr Nobakht was admitting.  He should have given Mr Nobakht careful advice with respect to that, thereby ensuring Mr Nobakht was aware of both the advantages and disadvantages of such a letter. 

[151]   If, on the other hand, the letter did get to the judge without Mr Cooke’s knowledge, then he should have acted differently once he found out about it and understood the potential importance the judge placed on it.  He should immediately have told the judge that he had not seen the letter.  He should have asked her for a brief adjournment so that he could study the letter, discuss it with his client, and discuss with him the ramifications of the sentencing indication the judge had given.  The judge almost certainly in the circumstances would have granted such a brief adjournment.  Mr Cooke did not take these steps.  It seems he did not study the letter carefully even then or pause to consider properly its ramifications.   He did not seek an adjournment, but chose to take instructions in court, while Mr Nobakht remained in the dock.  Something as important as this should not have been dealt with in a hurried exchange in court.  Further, this exchange took place without the benefit of an interpreter.  Mr Nobakht’s English is only moderate: it was vitally important that Mr Nobakht understood completely what the judge’s proposition was.  In particular, there needed to be a full discussion on the effect that an unqualified acknowledgement of guilt would have on his ability to appeal. 

[152]   Even though, therefore, we accept Mr Nobakht did accept involvement in the offending on which he was charged, we do not regard the admission as a “king hit” sinking his appeal.  It is true he has benefited from the admission by a specific reduction in sentence he would not otherwise have obtained.  But he received inadequate advice before the letter was submitted and during the sentencing process.  In these circumstances, we regard the admission as no more than a factor to be taken into account in the overall evaluation of whether a miscarriage of justice has occurred. 

Overall evaluation and conclusion

[153]   Of all the points taken, we have found only two to have any substance at all.  The first was the question about whether Mr Nobakht’s wife would be giving evidence.  The second was the cross-examination about Mr Nobakht’s return to Iran. 

[154]   Even taking those two matters together, we are not satisfied any miscarriage of justice has occurred.  As to the first, it was only one question in what was a very long trial.  The matter was never alluded to again and was dealt with effectively by the judge.  As to the second, we consider the jury, if they had regard to the cross‑examination at all, would have treated the exchange as having the most peripheral relevance to the case.  It was not mentioned again by either counsel and, of course, the judge gave a specific warning concerning the fact Mr Nobakht was a refugee and about the need for putting aside racial stereotypes, preconceptions and prejudices.  There is nothing to suggest the jury did not follow that direction. 

[155]   In addition, we take into account the strength of the Crown case.  The defendant’s account at trial was frankly implausible.  As a final matter, we take into account (although giving it little weight) the admissions made in Mr Nobakht’s letter to the judge. 

[156]   In all the circumstances, we are satisfied Mr Nobakht did receive a fair trial and that there has been no miscarriage of justice.  It follows the appeal will be dismissed. 

Solicitors:
Crown Law Office, Wellington