Ugochukwu v The Queen [2003] HCATrans 539 (12 December 2003)

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Ugochukwu v The Queen [2003] HCATrans 539 (12 December 2003)

Last Updated: 30 January 2004

[2003] HCATrans 539

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S157 of 2003

B e t w e e n -

IREANUS UGOCHUKWU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2003, AT 10.23 AM

Copyright in the High Court of Australia

MR D.J. BREZNIAK: May it please the Court, I appear for the applicant. (instructed by the applicant)

MR M.J. KING: May it please the Court, I appear for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

KIRBY J: Yes, Mr Brezniak, thank you for assisting the Court today. The Court was informed that this was to be dealt with on the papers, but we understand you want to put oral argument, is that correct?

MR BREZNIAK: Yes, your Honour, that is so.

KIRBY J: Yes, very well, you proceed. The difficulty in the case, of course, is the proviso.

MR BREZNIAK: Your Honour, it is the proviso which I seek to argue and to say that the proviso ought not, in the circumstances of this case, to have been applied. Conviction was not inevitable. It was, as the judgment of the Chief Justice indicates, a circumstantial case. The question of significance for this Court is set out in paragraph 32 in the judgment of the Chief Justice, where he discussed the authorities and, in particular, Whittaker’s Case, in which the High Court made a statement about a diminished inclination in recent times to invoke the proviso, even in otherwise - - -

KIRBY J: Justice Callinan and I have said that. I am not sure that the Court has said it.

MR BREZNIAK: It was a decision of the Chief Justice and your Honour and Justice Grove, that decision in Whittaker. Then, of course, there was Justice Callinan who supported that - - -

KIRBY J: I said it in Whittaker and then Justice Callinan supported it in Gilbert.

MR BREZNIAK: Yes.

KIRBY J: It may be that there has been a slight falling off, but the fact is that the proviso is in the statute and we cannot ignore it. We have no authority to ignore it. If you actually look at the history of how it came in, there was a lot of unrest in New South Wales about importing the English Criminal Appeal Act and this was the thing that ultimately persuaded them to accept it, that people would not win on technicalities where the case was overwhelmingly against them. That is what Chief Justice Spigelman found was the case here.

MR BREZNIAK: That is so, your Honour, but, really, even from the original English decision of Cohen and Bateman, which was, I think, a 1902 decision, not so very much has changed in terms of the essential test to be applied. Indeed, the Chief Justice took some comfort in paragraph 32 by saying that Festa suggested that the diminution had run its course – the argument about diminution of the inclination to invoke the proviso – that it had run its course, and he says further in that particular paragraph that:

Festa is of particular significance by indicating that the proviso is available –

Your Honour, respectfully, I submit that that analysis is not in accordance with what Festa really says. Festa is a discussion of the law. The discussion in Festa, in my submission, is a discussion which dealt with what you do with circumstantial evidence. Your Honour had particular remarks to make about that.

KIRBY J: Yes, I remember Festa well.

MR BREZNIAK: Yes. Your Honour, the oft-repeated - - -

KIRBY J: There was an awful lot of evidence in the flat, when it was visited by the police, that was only really explicable on the basis of the guilt of the accused.

MR BREZNIAK: That is so.

KIRBY J: It was a very, very strong combination of evidence. Now, Chief Justice Spigelman thought that in this case. I can understand that you want to bring this up to have a great case on the proviso, but we deal with the proviso all the time and, really, we can use different formulae of words but in the end it is a judgment that you have to make. You have to tell yourself it is very important that people get fair and lawful trials, but you have to tell yourself that in the nature of a human justice system and trials there are going to be little mistakes and that when they occur that is not to overwhelm the strengths, if it is a strength, of the prosecution case. It is a matter of judgment.

MR BREZNIAK: Yes, your Honour, that is very much the approach which is taken to the proviso, but what we are submitting here is that the proviso, even putting aside the legal error which was conceded by the prosecution – well, not even – given the concession made by the prosecution – and given that the jury were out for two days and given what really happened in the trial, the request for a redirection in relation to the question of lies, the request for the re-reading of - - -

KIRBY J: The Ghana lie does not seem to matter very much in the - - -

MR BREZNIAK: Scheme of things.

KIRBY J: I have been to Nigeria and Ghana and the Ghanaians would regard themselves often as superior fighters and warriors to the Nigerians, but Australians do not know much about that. Therefore, the Ghana lie is not going to feature very much in the jury’s deliberations, one would not think.

MR BREZNIAK: The Ghana lie goes absolutely nowhere, but the point is that when it was put to the jury by the trial judge it was put to the jury with the other lie, together, the other lie being not the subject of an appeal to the Court of Criminal Appeal, the lie about what was said to the police officer at the time of arrest. So although the question of the Ghana/Nigeria lie does not travel far, it went to the jury in a combined way and that had the effect, in my submission, of making the question of lies of some importance. As the Chief Justice said in his judgment, the question of lies did assume some importance in the case. It was not as it appeared, your Honour.

His Honour said in paragraph 35 of his judgment that the question of lies achieved a “prominence” in the trial. He also referred, if I can remind the Court, in paragraph 15 of the evidence of Mr and Mrs Bonnafoux, which was – he said the strength of the prosecution case relied to some real extent on the strength of the evidence of Mr and Mrs Bonnafoux and it was Mr and Mrs Bonnafoux who did give evidence of that lie, not the other lie in relation to the police, your Honour.

KIRBY J: I see that you notice and it is entirely proper that you are focusing on that issue, but what you do you say about paragraph 34 in Chief Justice Spigelman’s reasons, which is essentially why his Honour felt that this was overwhelming and that conviction was inevitable? Your client had:

total control of arrangements for delivery. The shipment had been addressed in Bangkok for delivery to a named person at a specific motel in Sydney.

Your client happened to have:

made all relevant arrangement for the occupation of the motel room by a person of that name. He had paid the room rent, including the extension for a further day when, on his version of events, the alleged recipient was actually in occupation. He had on his own person at the time of his arrest both of the receipts for these payments –

and so on. These are very powerful arguments.

MR BREZNIAK: It is precisely those arguments which we would challenge, your Honour. Unfortunately, the submissions do not contain a detailed enumeration of the way we would challenge it, but if I could give an example, your Honour having raised the question. There was a woman involved. There was a woman involved who made the telephone call, there was a telephone box which was not the closest telephone box to the home of the prisoner, there was a piece of paper which was found crumpled up, and you would ask, even with all the other aspects of the case, why that was of particular significance, if, indeed, he was in association with the woman who he said imported the drugs or who was responsible for the importation.

The facts – your Honour, we would seek to challenge the conclusion by the Chief Justice that this was an overwhelming Crown case. It looks it, when you look at the - - -

KIRBY J: It certainly does.

MR BREZNIAK: Yes, your Honour, when you look at the concatenation of facts, but if you look at them close enough they do not have, individually, much momentum. Perhaps the overwhelming nature of the case can only be ascertained by the concatenation of those factors.

KIRBY J: Yes, but the jury had the advantage of hearing all this and they came to their conclusion. Chief Justice Spigelman really sums it up in paragraph 34. We have had about seven cases in the last two years, I think, where the proviso has been considered. There is a very good article coming up in the Melbourne Law Review on the whole jurisprudence of the Court on the proviso. I just do not think that this is a case where we would ultimately be able to jump over paragraph 34.

MR BREZNIAK: Yes, your Honour. What we put by way of conclusions in the submissions is that the jury in this case were troubled by the question of lies.

KIRBY J: Well, that is a good thing. That is what juries are there for, but they ultimately concluded your client was guilty.

MR BREZNIAK: Yes, your Honour. That is the only aspect of the general grounds which I will press on this application, your Honour.

KIRBY J: Yes, thank you very much, Mr Brezniak. The Court does not need your assistance, Mr King.

This is an application for special leave to appeal against the dismissal of an appeal against the appellant’s conviction of an offence contrary to the Customs Act 1901 (Cth), section 233B(1)(d). The respondent accepted below, and before us, that errors had occurred at the trial in allowing evidence of an alleged lie to go to the jury as relevant to the applicant’s guilt of the subject offence; in the procedures followed by the trial judge thereafter; and in the direction given to the jury about that lie.

The Court of Appeal found that error was established. However, it applied the proviso in section 6 of the Criminal Appeal Act 1912 (NSW). For the reasons given by Chief Justice Spigelman in the Court of Criminal Appeal the prosecution case against the applicant, although circumstantial, was overwhelming. The alleged lie was of trivial significance in the entire context of the trial. No miscarriage of justice has been demonstrated, despite the helpful submissions of Mr Brezniak of counsel who appeared today for the applicant.

This Court has recently examined the general question of the directions to be given about alleged lies in evidence in a criminal trial: see Zoneff v The Queen (2000) 200 CLR 234. No occasion arises in this case to elaborate what was said there. In short, the Court of Criminal Appeal was right. Special leave to appeal is refused.

The Court will now adjourn in order to reconstitute.

AT 10.35 AM THE MATTER WAS CONCLUDED