BAN-ABU v R [2004] NZCA 96 (23 June 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA444/03THE QUEEN

v

ILAN BAN-ABU

Hearing: 21 June 2004

Coram: Anderson P Paterson J Doogue J

Appearances: S J Gill for Appellant
A Markham for Crown

Judgment: 23 June 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

Nature of the appeal

[1] The appellant was convicted on his trial before a High Court Judge, R Harrison J, and a jury on one count of possession of the Class B controlled drug, MDMA (ecstasy) for supply, contrary to s6(1)(f) Misuse of Drugs Act 1975, and one count of conspiring to supply ecstasy, contrary to s6(1)(c) of the Act. On each count he was sentenced to concurrent terms of imprisonment of eight and a half years. He now appeals against conviction on each count and against sentence. He did not press his appeal against sentence but, as we mention later in this judgment, a question arose about it in discussion with the Bench.

Circumstances of the offending

[2] We gratefully adopt Ms Markham’s careful exposition of the facts, with which no issue was taken on behalf of the appellant, and which are set out in paragraphs [3] to [20] of her written submissions:

On Wednesday 20 November 2002, a Hebrew-speaking British national, Jane Birak, arrived at Auckland International Airport on a flight from Amsterdam. She was carrying 53,624 tablets of ecstasy concealed in her suitcase. She passed through Customs without incident and booked into an inner city hotel.

She subsequently made or received a number of overseas phone calls, some in Hebrew, and some described as “heated” and concerning money.

On Monday 25 November she received NZ$1065 by way of wire transfer from a “Ben Yaov” in Amsterdam.

On 27 November 2002 the appellant (a Hebrew speaking Israeli national) arrived on a flight from Thailand. He is employed as a travelling international DJ. He was subsequently found in possession of a note of Ms Birak’s hotel telephone number, and Mr Yaov’s number in Amsterdam. On arrival, he booked himself into a different inner city hotel and telephoned Mr Yaov in Amsterdam three times and Ms Birak once. Ms Birak also telephoned the appellant.

On Thursday 28 November a Mr Aziz Aitas (also a Hebrew speaking Israeli national) arrived in Auckland from Amsterdam. His ticket had only been booked three days earlier, and from the same travel agent used by Ms Birak. Mr Atias had recently spent time in Thailand.

Mr Atias was stopped and searched by suspicious Customs officers, and found to be carrying a Samsonite suitcase with concealed compartment. The suitcase was empty. Mr Atias was questioned and released. Unbeknownst to him however, Customs arranged for the Police to conduct covert surveillance of his activities.

On the day of Mr Atias’ arrival, the appellant phoned Mr Yaov in Amsterdam three times.

Around lunchtime, the appellant attempted unsuccessfully to book into the Surrey Motor Lodge in Grey Lynn. He specifically requested a room in a private area of the complex across the street from the main reception area. A suspicious receptionist refused his request, even though a room was available.

An hour or so later, Mr Atias arrived at the Surrey Motor Lodge and also requested a room in the more private annexe area. He was also refused. However, he accepted a room (803) in the main part of the hotel.

At 2.50pm, Ms Birak phoned the appellant and they later met at the Exotiqa Restaurant in the Viaduct.

At 4.07pm Mr Atias telephoned the appellant from a payphone in Queen Street (although he had a cellphone available to him). He was seen meeting up with the other two at Exotiqa. Mr Atias and the appellant appeared to know one another, and were observed to embrace and walk arm and arm in downtown Auckland. All three were described as appearing “very friendly” (n/e p57 line 23).

The three then returned to Mr Atias’ hotel room at the Surrey Motor Lodge, where all three stayed the night. There was considerable telephone traffic that evening that continued throughout the night. The calls from the room included two calls to Ben Yaov’s Amsterdam number, and a large number of calls of short duration to local cell-phone numbers (exhibit 4). Additionally, there was a call made to Mr Yaov from the appellant’s cellphone.

Early the next morning, Mr Atias asked to change his room to the annexe area and all three moved in there (room 716). At 11am, the appellant left in a taxi with Ms Birak and checked out of his own hotel (the Kiwi International), and together they moved his luggage into room 716.

At about 12 noon Ms Birak left the Surrey Hotel alone in a taxi. She made two calls to the appellant, at 1.30pm and 3pm. She travelled to the Pentlands Hotel, where she collected her luggage and checked out.

In her absence, the Police and Customs officers broke down the door of room 716 and searched the room pursuant to s18(2) of the Misuse of Drugs Act 1975. No drugs were found. The appellant and Mr Atias were present at the time, and agreed to accompany the Police to the station to answer questions.

As they were leaving, Ms Birak returned to the Motor Lodge in a taxi. She was observed heading towards room 716 when she appeared to notice the damage to the door. She turned and tried to leave the car-park but was apprehended by Police. She was carrying her suitcase (also Samsonite brand) containing the 53,624 tablets of ecstasy. The drugs were found still hidden in the secret compartment, contained in unopened heat-sealed vacuum packed bags.

When spoken to by Police, the appellant claimed he had only met Mr Atias the day before when they struck up a conversation in the street. He agreed they had gone to a restaurant together, but denied that anyone else was with them. He also said that “nobody else” had been into the motel room. (This was prior to being made aware that Ms Birak had been arrested with the drugs).

The street value of the drugs is in excess of $3 million. Clearly this was a substantial importation carried out with a high degree of sophistication and international co-ordination. The Crown case was that Ms Birak was the courier in the operation, who assumed the risk of apprehension. Once she had arrived safely and the “coast was clear”, the appellant and Mr Atias arrived, intending to distribute the drugs and return to Europe with the proceeds, presumably concealed in Mr Atias’ suitcase.

Grounds of appeal

[3] Counsel for Mr Ban-Abu argued that the jury’s verdicts were unreasonable or could not be supported having regard to the evidence; that the Judge misdirected the jury in respect of possession; and that a miscarriage of justice had been occasioned by the trial, together, of the counts of possession for supply and conspiracy.
[4] Central to the appellant’s argument on the first ground is the proposition that in all the circumstances the jury could not reasonably exclude the possibility that although Jane Birak and Aviv Atias may have been executing a criminal plan, nevertheless the appellant’s association with them was innocent. Alternatively, and with specific reference to the charge of possession for supply, it was submitted that the evidence was insufficient to show that the appellant and, indeed, Aviv Atias had ever assumed sufficient control over the ecstasy in the physical custody of Jane Birak to constitute possession for the purposes of the specified offence. Mr Gill accepted the suggestion from the Bench that the issues invoked the following question:

Could the jury properly infer that Jane Birak arrived at the Grey Lynn motel room with the suitcase of ecstasy tablets in order to deliver them to the men there as part of a pre-concerted plan to which they all knowingly subscribed?

[5] If answered in the affirmative, that would dispose of the particular ground of appeal.
[6] The Judge had directed the jury in respect of possession in the following terms:

To prove that Mr Atias or Mr Ban-Abu was in possession of the Ecstasy for the purposes of supply, the Crown must establish three elements as you have heard from counsel. First, that he knew that Jane Birak had physical possession of the Ecstasy in New Zealand, not necessarily that it was in her suitcase; second, he intended to exercise a degree of control over the drugs; and, third, he actually exercised actual control over them. In this context control does not require physical custody or possession but rather the power or ability to direct the person having actual custody.

As I have said, the Crown’s case relies on much the same evidence that I have discussed with you on the conspiracy charge. Its case is essentially that Ms Birak had immediate and physical custody of the drugs but that by the morning or by lunch time on 29 November 2002 she had agreed at the direction of either or both of these men to surrender control to them. The Crown’s case is that at midday or earlier on 29 November either or both of Mr Atias or Mr Ban-Abu instructed Ms Birak to collect the suitcase and physically deliver it to the annexe. Perhaps a practical way of determining this issue is for you to ask whether, when Ms Birak left the hotel in the taxi at about midday, she was in fact free to exercise exclusive control over the drugs?

[7] Mr Gill’s submissions questioned, not so much the directions as to legal elements of possession, but rather the Judge’s inviting the jury to examine whether Ms Birak was free to exercise exclusive control over the drugs rather than focusing on the question whether the appellant was able to or intentionally did in fact exercise any measure of control over the drugs. Perceived in this way, the ground is a hybrid of inadequate direction and inadequate evidence.
[8] It was also argued on behalf of the appellant that the conspiracy count added nothing to the count of possession in circumstances where conduct on the part of the appellant could only amount to possession if there had been an antecedent agreement that he would come into possession in the relevant sense. The Crown’s interest would have been adequately satisfied by prosecuting the charge of possession for supply without also prosecuting for the integral offence of conspiracy. On the other hand, the appellant, in counsel’s submission, was unfairly disadvantaged by the inclusion of a conspiracy count because it permitted the admission of evidence which would otherwise have been excluded as hearsay.

Crown submissions

[9] Ms Markham submitted that there was ample evidence justifying a rational conclusion that all three were involved in a criminal plan for dealing in New Zealand with the drugs which Jane Birak had smuggled in. The evidence was sufficient to support a conclusion not only that the two male criminals were involved in a plan for the delivery of the drugs by Jane Birak to them, at a time and place which they had been party to arranging, and were therefore legally in possession in a primary sense, but also the circumstances were such as to indicate without doubt that the men were also guilty as parties to the possession of which Jane Birak’s physical custody was a component. Not only was there adequate evidence to support both conclusions but, in the Crown’s submission, the appellant was fortunate in that the Judge did not direct on the issue of possession as an accomplice.
[10] As to the matter of severance, Ms Markham pointed out that the appellant could show no prejudice by reason of the inclusion of the conspiracy count. This is because the same evidence which the appellant claimed was unfairly prejudicial by reason of the conspiracy rule was equally admissible under the rules of evidence relating to joint enterprises and would have come in the same way even if the conspiracy charge had not been included in the indictment.

Discussion

[11] In our view the facts as elucidated by the Crown admit of no rational conclusion other than that each of the three co-accused was party to a criminal plan involving the delivery by Jane Birak of the drugs in question to the two men for them to deal with in some way within New Zealand. It cannot sensibly be disputed, nor did counsel for the appellant attempt to do so, that either the drugs themselves or money obtained upon their supply were to be removed from New Zealand hidden in the secret compartment of the suitcase brought into New Zealand by Atias. That had to involve a criminal dealing in the drug by Jane Birak and Aviv Atias. Once that is realised, the coincidences of the conduct such as both men recently having spent time in Thailand, the telephone discussions with Ben Yaov, the meetings and other connected dealings between the three, the strange requests for a private room made separately by each of the men, the arrival of Jane Birak at the men’s motel with the suitcase full of drugs, compel the conclusion that all three were parties to the illegal conduct.
[12] We also accept the Crown’s submissions that the Judge’s directions on the elements of possession were favourable to the appellant rather than otherwise, and that the evidence which the appellant claimed was prejudicial, but admitted by virtue of the conspiracy count, would have been equally admissible and was bound to have been admitted if there had been no conspiracy count. It follows that the appeal against conviction on each count must be dismissed.
[13] As for the matter of sentence, the question arose in the course of argument whether the maximum sentence that could be imposed on the conspiracy count was seven years having regard to the provisions of s310 of the Crimes Act 1961, which was referred to in the indictment. If s310(1) applied, as well as s6(1)(c) of the Misuse of Drugs Act, which the indictment also referred to, the maximum penalty for conspiracy would have been half the 14 years prescribed for the substantive offence of dealing in a Class B drug. We indicated to counsel that we would consider the matter and we would regard the appellant’s appeal against sentence as extant for such limited purposes.
[14] What the indictment did not refer to, although such omission is not in any sense fatal, was s6(2A) of the Misuse of Drugs Act which stipulates a maximum sentence of imprisonment of ten years for a conspiracy to, amongst other things, supply a Class B controlled drug. It follows that the concurrent sentence of eight and a half years imprisonment imposed on the appellant for the conspiracy was within jurisdiction. It was not suggested on behalf of the appellant that the sentence is manifestly excessive or inappropriate.

Result

[15] For the above reasons the appeals against conviction and sentence are dismissed.

Solicitors:
Gill & McAsey, Lower Hutt for Appellant
Crown Law Office, Wellington