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The Queen v Martin [2006] NZCA 340 (6 December 2006)

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The Queen v Martin [2006] NZCA 340 (6 December 2006)

Last Updated: 12 December 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA161/06

THE QUEEN

v

LINDA MARTIN

Hearing: 24 October 2006

Court: Arnold, Baragwanath and Wild JJ

Counsel: B J Hart for Appellant
B R Northwood for Crown

Judgment: 6 December 2006 at 11 am

JUDGMENT OF THE COURT

A Appellant’s application for further disclosure is declined.
B Appellant to file fully particularised grounds of appeal within 14 days of the date of judgment if she wishes to pursue her conviction appeal.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] Following a jury trial before Priestley J, the appellant was convicted on one count of importing cocaine, a Class A controlled drug, into New Zealand. She was sentenced to a term of imprisonment of eight years, five months. She has appealed against her conviction and sentence.
[2] In the notice of appeal the grounds of appeal against conviction are stated to be:

(a) Verdict against the weight of evidence;

(b) Learned trial Judge misdirected on law of knowledge and intent.

[3] The appeal was set down for hearing on 24 October 2006. However, on 11 September 2006 counsel for the appellant, Mr Hart, wrote to the Crown alleging that the Crown had failed to make full disclosure to the defence prior to trial and seeking further disclosure. In particular, Mr Hart sought disclosure of material arising out of an affidavit made by Detective Inspector Allsopp-Smith on 28 June 2005 in support of an application for interception warrants in another matter (the affidavit). Mr Hart asked that disclosure be provided well before 24 October 2006 "in order to allow it to form the basis of the appeal".
[4] Having considered the request, the Crown declined to provide further disclosure, on the ground that the material requested was not relevant to the appellant’s case.
[5] Given this response, and Mr Hart’s rejection of it, it was clear that the hearing of the appeal could not proceed on 24 October 2006. However, given that there was a dispute about disclosure, the Court decided to take advantage of the fixture to deal with the dispute. Accordingly we heard argument on the basis that there was an application for further disclosure prior to the hearing of the appeal.

Background

[6] The appellant, a South African citizen, arrived at Auckland on an international flight which she had apparently boarded in Brazil. She was ticketed to fly to Brisbane two days after her arrival in New Zealand and to return to Auckland two days after that, prior to returning to South America. When she arrived at Auckland, the appellant was travelling under a false name on a false United Kingdom passport.
[7] The appellant’s suitcase was searched at the airport. Four ornamental statues were found. Concealed inside these was 3.179 kilograms of cocaine.
[8] In brief, the appellant’s defence was that she did not know the statues contained drugs. She said that she had undertaken the flight because she and members of her family had been threatened by a group of Nigerians. She was given tickets to fly from South Africa to Brazil, where she was provided with her instructions, the false passport, the tickets for her travel to New Zealand and Australia and where the statues were placed in her suitcase. She said that she was told that this was to be a training trip and that if she survived this trip she would be "ready to go".

Basis of application

[9] Mr Hart’s argument in support of the application for further disclosure was based on two inter-related propositions:

(a) The material in the affidavit showed the existence of a Nigerian cartel operating behind the scenes. The attempted importation was not a one-off attempt by the group of Nigerians but rather was part of a "well-organised, multi-faceted and hierarchical organisation responsible for an unknown number of importations." This information about the size and the extent of the group’s operations, Mr Hart said, supported the appellant’s claim that she did not know that the statues contained drugs. It also undermined what he said was the Crown’s argument, namely, that the organisers would not have risked such a valuable cargo to a courier who would not exercise caution through ignorance of what she was carrying.
(b) The material showed that the group’s modus operandi was to target poor, ill-educated and vulnerable people like the appellant, whom they regarded as "disposable". The organisers, Mr Hart said, would not mind losing a few couriers because of the huge profits to be gained from those who evaded the net. This was consistent with the appellant’s contention that she did not know what she was carrying.

Discussion

[10] We reject the application. We do so for two reasons.
[11] First, Mr Hart was aware at the time of trial that there are groups of Nigerians involved in drug trafficking on an international scale. He raised the matter in his cross-examination of one of the Police witnesses. The following exchange took place:

...But I suppose at the end of the day it really depends on whoever was responsible for sending this on its way hopefully to Australia how high up the chain of distribution they were correct – what I’m saying is if it’s tied up with a cartel buy it more cheaply if they’re getting it from the cartel it would be more expensive that’s the way it works isn’t it? ... I understand your point it’s a very general question we’re dealing with – the group we’re dealing with here yes they would have been sourcing it from one of the drug groups but they’re a drug group in their own right it’s difficult to quantify how much they’re paying for it.
In any event there’s huge profit and so the loss of a consignment is probably brokered into their whole operation ? ... Oh most definitely.
You made reference to the person who is apprehended at the Flight Centre the black African do you know what nationality he was? ... Yes, he’s a west African a Nigerian.
And again just from your own general knowledge are there large groups of Nigerians operating world-wide in the drug trade? ... Many law enforcement groups perceive them as the second largest of the drug groups.

[12] He also asked questions of the sole witness called for the defence, a police inspector from South Africa, about the part that Nigerian drug dealers play in South Africa and the way in which they operate.
[13] In addition, there was a high profile drug case in Auckland involving a group of Nigerians who used a courier in an attempt to traffic drugs through New Zealand. The drugs were concealed in two large ornamental statues. The courier and two others were apprehended and charged. The latter two entered pleas of guilty, while the courier went to trial and was convicted. The background is set out in the judgment of this Court in R v Davis CA440/04 October 2005. It is inconceivable that a criminal defence barrister of Mr Hart’s knowledge and experience practising in Auckland was not aware of this case.
[14] Accordingly, if Mr Hart had regarded the matters which he now raises as critical to his client’s defence he could have made appropriate enquiries of the Crown prior to trial. But he did not do so. While the affidavit may have provided Mr Hart with more detail than previously he had, we do not see this as affecting the position.
[15] As we see it, Mr Hart made a tactical decision as to the basis on which he would present his client’s defence. As his questions at trial show, he knew that there were Nigerian cartels involved in international drug trafficking. He knew that one such group was involved in his client’s case and he must have known that at least one similar group had been involved in another attempt to traffic drugs through New Zealand. Had he chosen to do so, he could have sought further information from the Crown prior to trial about its knowledge of this particular group’s activities. He could also have pursued the matter more fully in cross-examination. The fact that he did not do so suggests that Mr Hart did not regard the information as critical to his client’s defence. In effect by this application Mr Hart now seeks, to "have a second go", ie, he seeks the opportunity to present his client’s case on the basis of additional evidence, albeit that that material was available to him at the time of trial.
[16] Second, Mr Hart said that the material in the affidavit concerning the group’s modus operandi supported his client’s claim that she did not know that there were drugs in the statues. However, the affidavit does not reveal a modus operandi of the type suggested by Mr Hart. While it is true that several other couriers who have worked for the group claimed that they did not know that they were carrying drugs, others indicated that they did know what they were carrying. Further, what was at issue at the trial was the appellant’s knowledge. The presence or absence of knowledge on the part of other couriers working for the group provides little or no assistance in determining the state of the appellant’s knowledge.
[17] For these reasons we decline the application for further disclosure. If the appellant wishes to pursue her appeal against conviction she is to file fully particularised grounds of appeal within 14 days of the date of this judgment. (This does not, of course, affect the appellant’s sentence appeal.)

Solicitors:
Crown Law Office, Wellington

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[1]	Following a jury trial before Priestley J, the appellant was convicted on one count of importing cocaine, a Class A controlled drug, into New Zealand. She was sentenced to a term of imprisonment of eight years, five months. She has appealed against her conviction and sentence.
[2]	In the notice of appeal the grounds of appeal against conviction are stated to be:

[3]	The appeal was set down for hearing on 24 October 2006. However, on 11 September 2006 counsel for the appellant, Mr Hart, wrote to the Crown alleging that the Crown had failed to make full disclosure to the defence prior to trial and seeking further disclosure. In particular, Mr Hart sought disclosure of material arising out of an affidavit made by Detective Inspector Allsopp-Smith on 28 June 2005 in support of an application for interception warrants in another matter (the affidavit). Mr Hart asked that disclosure be provided well before 24 October 2006 "in order to allow it to form the basis of the appeal".
[4]	Having considered the request, the Crown declined to provide further disclosure, on the ground that the material requested was not relevant to the appellant’s case.
[5]	Given this response, and Mr Hart’s rejection of it, it was clear that the hearing of the appeal could not proceed on 24 October 2006. However, given that there was a dispute about disclosure, the Court decided to take advantage of the fixture to deal with the dispute. Accordingly we heard argument on the basis that there was an application for further disclosure prior to the hearing of the appeal.

[6]	The appellant, a South African citizen, arrived at Auckland on an international flight which she had apparently boarded in Brazil. She was ticketed to fly to Brisbane two days after her arrival in New Zealand and to return to Auckland two days after that, prior to returning to South America. When she arrived at Auckland, the appellant was travelling under a false name on a false United Kingdom passport.
[7]	The appellant’s suitcase was searched at the airport. Four ornamental statues were found. Concealed inside these was 3.179 kilograms of cocaine.
[8]	In brief, the appellant’s defence was that she did not know the statues contained drugs. She said that she had undertaken the flight because she and members of her family had been threatened by a group of Nigerians. She was given tickets to fly from South Africa to Brazil, where she was provided with her instructions, the false passport, the tickets for her travel to New Zealand and Australia and where the statues were placed in her suitcase. She said that she was told that this was to be a training trip and that if she survived this trip she would be "ready to go".

[10]	We reject the application. We do so for two reasons.
[11]	First, Mr Hart was aware at the time of trial that there are groups of Nigerians involved in drug trafficking on an international scale. He raised the matter in his cross-examination of one of the Police witnesses. The following exchange took place:

[12]	He also asked questions of the sole witness called for the defence, a police inspector from South Africa, about the part that Nigerian drug dealers play in South Africa and the way in which they operate.
[13]	In addition, there was a high profile drug case in Auckland involving a group of Nigerians who used a courier in an attempt to traffic drugs through New Zealand. The drugs were concealed in two large ornamental statues. The courier and two others were apprehended and charged. The latter two entered pleas of guilty, while the courier went to trial and was convicted. The background is set out in the judgment of this Court in R v Davis CA440/04 October 2005. It is inconceivable that a criminal defence barrister of Mr Hart’s knowledge and experience practising in Auckland was not aware of this case.
[14]	Accordingly, if Mr Hart had regarded the matters which he now raises as critical to his client’s defence he could have made appropriate enquiries of the Crown prior to trial. But he did not do so. While the affidavit may have provided Mr Hart with more detail than previously he had, we do not see this as affecting the position.
[15]	As we see it, Mr Hart made a tactical decision as to the basis on which he would present his client’s defence. As his questions at trial show, he knew that there were Nigerian cartels involved in international drug trafficking. He knew that one such group was involved in his client’s case and he must have known that at least one similar group had been involved in another attempt to traffic drugs through New Zealand. Had he chosen to do so, he could have sought further information from the Crown prior to trial about its knowledge of this particular group’s activities. He could also have pursued the matter more fully in cross-examination. The fact that he did not do so suggests that Mr Hart did not regard the information as critical to his client’s defence. In effect by this application Mr Hart now seeks, to "have a second go", ie, he seeks the opportunity to present his client’s case on the basis of additional evidence, albeit that that material was available to him at the time of trial.
[16]	Second, Mr Hart said that the material in the affidavit concerning the group’s modus operandi supported his client’s claim that she did not know that there were drugs in the statues. However, the affidavit does not reveal a modus operandi of the type suggested by Mr Hart. While it is true that several other couriers who have worked for the group claimed that they did not know that they were carrying drugs, others indicated that they did know what they were carrying. Further, what was at issue at the trial was the appellant’s knowledge. The presence or absence of knowledge on the part of other couriers working for the group provides little or no assistance in determining the state of the appellant’s knowledge.
[17]	For these reasons we decline the application for further disclosure. If the appellant wishes to pursue her appeal against conviction she is to file fully particularised grounds of appeal within 14 days of the date of this judgment. (This does not, of course, affect the appellant’s sentence appeal.)