Asadpour v R [2013] NZCA 348 (8 August 2013)

Last Updated: 15 August 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA810/2012 [2013] NZCA 348
BETWEEN	MAHMOUD ASADPOUR Appellant
AND	THE QUEEN Respondent

Hearing:	30 July 2013
Court:	Stevens, Panckhurst and Ronald Young JJ
Counsel:	H B Leabourn for Appellant B D Tantrum and M J Hammer for Respondent
Judgment:	8 August 2013 at 10.15 am

JUDGMENT OF THE COURT

1. The application to extend the time for appealing is granted.
2. The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] Following a trial before Judge Hubble and a jury the appellant was convicted of two charges of importing the class A drug methamphetamine. He was sentenced to 12 and a half years’ imprisonment.^[1]
[2] The appellant now appeals against his conviction on the basis that a miscarriage of justice arose from the Judge’s directions on the burden of proof. The appeal against sentence is advanced only to the extent that, if a miscarriage of justice is established and the convictions are overturned, the corresponding sentences must also be overturned.
[3] The conviction appeal comes down to a relatively narrow point in the summing up. It is said that in six paragraphs of his directions to the jury the Judge effectively reversed the onus of proof. Additionally, it is said that the Judge confusingly introduced personal observations on the facts into the legal directions concerning onus of proof and the tripartite direction.^[2]
[4] The appeal was filed one day out of time. The application to extend the time for appealing is granted.

Factual background

[5] On 24 September 2010 the appellant arrived at Auckland International Airport from Thailand. On the same day, the appellant’s co-offenders, Mr Slipkus and Mr Sliupas, also arrived at Auckland International Airport from Thailand via Kuala Lumpur. Mr Slipkus was found by a customs officer to have concealed internally 105 capsules containing 542.8 grams of methamphetamine. Mr Sliupas was found to have concealed internally 77 capsules containing 329.8 grams of methamphetamine.
[6] The Crown case at trial was that the appellant’s role was that of an “overseer” or organiser of the importation of the methamphetamine. The appellant was an international traveller who had made two prior trips to Thailand in the same year. His job was to assemble the two mules, supervise the ingestion, weigh the methamphetamine, coordinate the flights, and book a hotel in New Zealand. He was responsible for keeping in touch with the mules during transit then meeting them in New Zealand. The Crown pointed in particular to a set of scales found in the appellant’s suitcase, which were said to be intended for use in weighing the methamphetamine in Thailand and in New Zealand.
[7] The defence case was that the appellant was an “extremely unlucky victim of circumstance”.^[3] He had never met, nor had any contact with, Mr Slipkus or Mr Sliupas. Instead, he was coming to New Zealand for a holiday after honeymooning in Thailand with his wife.
[8] The Crown case was based on circumstantial evidence. Much of the Crown evidence was not, and could not, be challenged.^[4] Mr Leabourn accepts that it was necessary for the appellant to give evidence in an attempt to provide an innocent explanation for the compelling inferences arising from the admitted and proven facts presented in the Crown case.
[9] At his trial the appellant duly gave evidence. He also called one other witness on behalf of the defence.

The summing up

[10] In order to understand the appellant’s argument, it is necessary to set out the relevant sections of the summing up in full. The challenged portions are highlighted in bold type:

[11] What about assessing witnesses? In this case there is not much you need to assess in relation to the Crown witnesses, because much of their evidence is accepted. You do not have to decide are they lying or are they not lying, that is not the issue here. The issue here is whether or not Mr Asadpour has instilled in you a reasonable doubt about the whole situation, his account and explanation of what occurred.

[12] So it seems to be that the Crown evidence, standing alone, without hearing anything from Mr Asadpour, looks very dark for Mr Asadpour, and I think we could all agree with that. There is just so much circumstantial buildup there of coincidences that, without some explanation to raise a doubt in your mind, you would not have difficulty concluding guilt.

[13] But Mr Asadpour has given evidence. He does not have to prove anything to you but, in this case, the question you must ask is has he raised in your minds a reasonable doubt about the hard facts that have been presented.

...

[17] The burden of proof, as has been emphasised to you, the burden of proof remains on the prosecution throughout. They must present sufficient evidence to convince you that Mr Asadpour is guilty. There is no obligation on Mr Asadpour to give evidence or present evidence of any kind. Sensibly, I think it must be accepted in this case that it is crucial to his defence that he has raised a doubt in your mind, nevertheless, as to the various items of hard evidence that have been presented here.

...

[21] Now, Mr Asadpour has chosen to give evidence in this case, and to call evidence. But by doing that he does not assume any burden of proving his innocence. It can have three effects: first of all, you might accept everything that Mr Asadpour has said, that, really, this man, Javad, we do not know his second name, has effectively set him up, used his phone, perhaps even put documents onto him, and that he did not even know these two mules who were importing this stuff into New Zealand; that he was simply a tourist on holiday and that he was with his wife, but she did not follow on through the journey because she had to rush home to an ill grandmother. So you can accept that evidence and, of course, you will find him not guilty.

[22] The other possibility is that he has raised in your mind a reasonable doubt and, as I have said earlier, if he has done that, but you are not sure about the situation, then of course, equally, you have got to find him not guilty.

[23] The third possibility is that, as Mr Patterson has said, he has made up a whole story about the situation, and stories to fit the bill on each of the hard facts presented by the Crown and, accordingly, you disregard his evidence. What you would then have to do is disregard his evidence, but that does not mean to say you will simply find him guilty at that stage. You have to go back to the Crown case. And you may or may not agree with me that the Crown case, standing on its own, without any explanation as to how the things got there, it would indeed point to Mr Asadpour being guilty, certainly as a party to importing these drugs. But that is a matter for you. The important thing is if you do not accept his whole story, you have still got to go back to the Crown case and say “Have they proved it?” And if they have not, you find him not guilty.

[11] The directions given in paragraphs [21] to [23] comprise the necessary evidential direction when an accused has given or called evidence.^[5] In order to provide the full context to the challenged passages, we refer also to the Judge’s directions on standard and onus of proof:

[18] As to the standard, you have got to be satisfied. This is an important observation, and what I am going to read to you is the distillate of our Court of Appeal’s words on the standard of proof, and it is to this effect: the starting point is innocence, a presumption of innocence. You have got to treat Mr Asadpour as innocent until the Crown has proved his guilt. The presumption of innocence means that an accused does not have to give or call any evidence, and does not have to establish his innocence. The Crown have got to prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof, and the Crown will only have met that if, at the end of the case, you are sure that an accused person is guilty.

[19] So, as Mr Leabourn has said to you, it is not enough for the Crown to persuade you that Mr Asadpour is probably guilty, or even that he is very likely guilty. But, of course, on the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with a reconstruction of past events, and the Crown does not have to do that either ...

[20] So what then is a reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of an accused, after you have given careful and impartial consideration to all of the evidence. It is important, so I summarise as the Court of Appeal has: if, after careful and impartial consideration of the evidence, you are sure that an accused is guilty, you must find him or her guilty. On the other hand, if you are not sure that that accused is guilty, you must find him not guilty.

[12] Finally, in terms of context, we note the following:

• (a) Crown counsel in opening correctly informed the jury on two occasions that the burden of proof is on the Crown and that proof beyond reasonable doubt is required.
• (b) In the Crown closing, counsel twice referred to the fact that the Crown has the burden of proving its case beyond reasonable doubt. The standard of proof was correctly described.
• (c) Mr Leabourn in closing referred in very clear terms to the fact that the burden of proof was on the Crown and that proof to the “very high standard of proof beyond reasonable doubt” is required. Mr Leabourn also correctly recognised that in the context of the way in which the case had unfolded during the trial much depended on the weight to be given to the appellant’s evidence. Mr Leabourn submitted to the jury that the appellant’s evidence was “clear and logical and an alternative explanation to the explanation that the Crown is advancing to you”.
• (d) The question trail prepared by the Judge and discussed with the jury in the course of the summing up clearly identified the requirement that the jury “must be satisfied beyond reasonable doubt when answering these questions”.
• (e) Finally, as Mr Tantrum notes, there is no record of the appellant’s counsel raising, at the conclusion of the Judge’s summing up, any issues with regard to its contents.

Appellant’s submissions

[13] Mr Leabourn first refers to the importance of accurate directions in relation to the burden of proof citing R v Primrose, where this Court held:^[6]

An issue as fundamental as the onus of proof obviously requires clear and unequivocal direction from a trial Judge. The jury should be left in no doubt as to the way in which key issues should be determined. The responsibility of the Crown must be clearly articulated. As it is common ground that there were material errors in some parts of the summing up, the key issue is whether what was said in other parts was sufficient to nullify the risk of the jury being misled.

[14] Next, Mr Leabourn cites several cases where convictions had been quashed due to erroneous directions. For example, in R v Gutuama, this Court allowed an appeal against conviction where the jury was told that the issue was whether it could accept the defence.^[7] Another example is Murray v R where the High Court of Australia concluded that the trial Judge had erred in telling the jury that they had to decide which version of the relevant events they would accept.^[8]
[15] Mr Leabourn submits that the Judge’s directions at [11] and [12]^[9] suggest that the appellant had some form of responsibility to convince the jury of a reasonable doubt. He also submits that [13] is “contradictory and conflicting”. While [17] initially confirms that the burden of proof remains with the prosecution throughout, this is followed up by a statement which suggests that the appellant was responsible for raising some sort of doubt with the jury. Similarly, Mr Leabourn submits that, although the first part of [21] is accurate, in [22] the Judge once again returns to the possibility of the appellant having not raised a reasonable doubt.
[16] Mr Leabourn properly acknowledges that at certain points (for example, at [18] and at [21]), the Judge correctly referred to the standard of proof. However, he submits that the directions have an “undercurrent” whereby the Judge suggests that there is an onus or burden on the appellant. Accordingly, the summing up was “completely contradictory” and resulted in a miscarriage of justice. For these reasons, Mr Leabourn submits that the convictions are unsafe and should be quashed.

Our evaluation

[17] The conviction appeal turns on a relatively narrow point as to the effect of the challenged portions of the summing up. We agree with Mr Leabourn that, as this Court has previously emphasised,^[10] the concept of onus and standard of proof are fundamental and important in a criminal trial. The legal implications of each need to be clearly spelled out to the jury. Yet, as was emphasised by this Court in R v Gutuama, in cases involving alleged misdirections what matters is the overall impression on the jury.^[11] The Court on appellate review must consider whether or not the combined effect of the challenged directions was significant and in context amounted to a miscarriage of justice.
[18] An important factor in our evaluation is that the Judge correctly directed the jury in terms of the best practice requirements set out in R v Wanhalla. As was said there, directions on reasonable doubt should be given both at the start of the summing up (usually in the introductory part of the summing up) and again, in short form, when addressing the elements of the offence and any defences.^[12]

The tripartite direction

[19] The next point is that when the Judge came to give the tripartite direction, which was necessary because the accused had both given and called evidence, he gave, subject to two aspects to which we will refer below, a proper tripartite direction. Generally, a direction of this type would include a direction as to the effects of an accused testifying (or calling evidence). The essentials of such a direction are:

• (a) to emphasise it does not change where the burden lies;
• (b) to explain to the jury the consequences of believing the accused, being left unsure about the evidence, or disbelieving the accused; and
• (c) to reinforce that if the jury disbelieves the accused, it is still its responsibility to consider all the evidence to assess whether the Crown has proved its case to the required standard.

[20] The two aspects of difference are as follows. In [22] of the summing up, the Judge referred to the possibility that the accused has “raised in your mind a reasonable doubt”. We consider a better approach would have been a direction along the following lines:

If what the accused has said leaves you unsure, then again the proper verdict is acquittal, because you will have been left with a reasonable doubt. If what the accused says seems a reasonable possibility, the Crown will not have discharged its task, and you must acquit.

[21] The second difference arises from the challenged portion in [23] which includes the following:

And you may or may not agree with me that the Crown case, standing on its own, without any explanation as to how these things got there, would indeed point to Mr Asadpour being guilty, certainly as a party to importing these drugs.

[22] This observation is an example of the Judge expressing his own opinion on the facts. Its placement in the middle of the tripartite direction was unwise. We consider that the preferable course would have been to conclude the third part of the tripartite direction as a legal direction uncluttered by any expression of the Judge’s own opinion. That said, the mere fact that the Judge has expressed an opinion is not fatal, particularly when the Judge had, in the opening part of the summing up, emphasised that the jury were the sole judges of fact. He confirmed that if during the course of the summing up he put forward a view with which the jury disagreed then it should be given no weight.

The other challenged passages

[23] We turn next to the challenged parts of paragraphs [11] to [13] (inclusive)^[13] and [17]. We agree with Mr Leabourn that the wording in these passages is unfortunate. However, in our view, they do not amount to a reversal of the onus of proof. Rather, they are an attempt by the Judge, in what we assess to be rather infelicitous language, to identify the real issue in the case. The pity of it is that these observations occurred at a point in the summing up before the Judge had directed on the onus and standard of proof. Moreover the context involved directions about how the jury should go about assessing witnesses.
[24] The comments in these paragraphs also occurred prior to the Judge giving the tripartite direction. However, in the way in which this trial unfolded, the Crown case was strong. It relied on circumstantial evidence. As Mr Leabourn accepted, it was essential for the accused to give evidence in support of the defence case. He had to explain the clear inferences arising from the Crown case.
[25] In our view, it would have been preferable for the Judge not to use language such as that in [11] “whether or not Mr Asadpour has instilled in you a reasonable doubt about the whole situation”. Further, the reference in the second sentence in [12] to “without some explanation to raise a doubt in your mind, you would not have difficulty concluding guilt” was unwise. Similarly the references in [13] (and repeated in [17]) to “raised in your minds a reasonable doubt about the hard facts that have been presented”, should not have been used.
[26] That said, concepts similar to these arise in the second part of the tripartite direction in the Bench Book. Moreover, in the context of this case, the reality was that the appellant, through evidence given by him and led in his defence, needed to leave the jury unsure or alternatively with a reasonable possibility that the appellant’s explanation was true such that it could decide the Crown would not have discharged its task of proving the case beyond reasonable doubt.
[27] As we have emphasised, a summing up needs to be viewed in context and in the light of the overall impression given to the jury. We are satisfied that none of the challenged passages would have led the jury to consider that the burden of proof was reversed. A correct direction was given on the burden and standard of proof. A broadly satisfactory tripartite direction was given. And the materials that the jury had in the jury room included a clear direction that the jury must be “satisfied beyond reasonable doubt when answering these questions”.
[28] Although the challenged passages contained unorthodox comments, we are satisfied that none of the challenged passages, either individually or in combination, resulted in a miscarriage of justice.

Result

[29] For all of the above reasons the appeal against conviction must be dismissed. It follows that the appeal against sentence likewise cannot be sustained and is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Asadpour DC Auckland CRI-2010-004-17375, 13 November 2012 [sentencing notes].

^[2] Mr Leabourn realistically did not advance either in the written or oral submissions the other ground of appeal against conviction mentioned in the notice of appeal.

^[3] Sentencing notes at [36].

^[4] For example, some 11 important aspects of the Crown evidence were the subject of a memorandum of admitted facts pursuant to s 9 of the Evidence Act 2006.

^[5] Known as the “tripartite” direction.

^[6] R v Primrose CA499/05, 6 September 2006 at [27].

^[7] R v Gutuama CA275/01, 13 December 2001.

^[8] Murray v R [2002] HCA 26; (2002) 211 CLR 193.

^[9] Quoted at [10] above.

^[10] See for example, R v Wanhalla [2007] 2 NZLR 573 (CA) at [1] and R v Primrose, above n 6, at [27].

^[11] At [42].

^[12] Above n 10 at [51].

^[13] These are set out in full at [10] above.