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Orji v R [2013] NZCA 629 (11 December 2013)

Last Updated: 24 December 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
14 August 2013 (further submissions received 30 August 2013)
Court:
Ellen France, Rodney Hansen and Mallon JJ
Counsel:
C J Tennet for Appellant M J Lillico for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal against conviction is dismissed.
  2. The application for leave to adduce new evidence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1] Following trial before Judge McAuslan and a jury in the Papakura District Court, Mr Orji was convicted of eight counts of producing a passport knowing it to have been forged or to have been obtained fraudulently, contrary to s 142(1)(d)(ii) Immigration Act 1987 (the Act) and one count of having in his possession or under his control, a passport that he knew or had reason to suspect had been falsified or obtained by false representation, contrary to s 31(1)(f)(i) Passports Act 1992. He was sentenced to two years and three months’ imprisonment on each charge, to be served concurrently.
[2] Mr Orji appeals against conviction. He relies on a multiplicity of grounds which he seeks to augment by introducing further evidence on appeal. Those grounds are:

Factual background

[3] Mr Orji is a Nigerian. On Christmas Day 2002, he entered New Zealand using a false South African passport in the name of Fhumulani Mudau.
[4] On 23 January 2003, he made a claim to refugee status using the name Jeffery Ugochukwu Orji. His claim was declined.
[5] In May 2003, Mr Orji met his wife, Kelesia Orji (nee Lapi). They married in August 2003.
[6] Mr Orji left New Zealand for Fiji on 5 December 2003 using a Nigerian passport number A1823269. He returned to New Zealand on 25 December 2004. He entered using a visitor’s visa issued in Fiji and the same Nigerian passport.
[7] On 1 September 2005, Mr Orji reported his Nigerian passport as lost. On 14 October 2005, he applied for residence in New Zealand. He used a Nigerian passport, number A3266978A, in the name of Jeffery Ugochukwu Orji.
[8] On 18 December 2006 and on four subsequent occasions, the last on 22 October 2008, Mr Orji submitted work permit applications supported by Nigerian passport A3266978A. He also used the passport to support a visa/permit application on 27 March 2009.
[9] On this last occasion, the INZ officer who was assigned to deal with the application, noticed a discrepancy in the passport number. Examination of the passport showed that the number on the “biodata” page (where the holder’s photograph and biological details are entered), A3266978, had been altered, the 8 having been changed from a 6. The number did not match with the passport number punched as holes into the pages of the passport which added “A”. It transpired that passport number A3266978A was one of a sequence of Nigerian passports that had been reported as stolen.
[10] After discovering the forgery, INZ obtained warrants to search Mr Orji’s house and another house with which he was associated. They seized a number of documents. They included two birth certificates. One was for the date of birth shown in Mr Orji’s passports – 17 November 1979. The other, in the name of Ugochukwu J Iwuala Orji, recorded a date of birth of 17 November 1975. The police also found Nigerian driver’s licences issued since Mr Orji came to New Zealand and other documents which appeared to confirm that he was the person born on 17 November 1979.
[11] The Crown case was that Mr Orji’s date of birth was in fact 17 November 1975; that he was Ugochukwu Johnson Iwuala; and the name “Orji” was added later to the birth certificate found in his possession. The case was that Mr Orji appropriated the identity of the male born on 17 November 1979 and obtained forged documents or fabricated evidence to support that identity. Among the further evidence relied on by the Crown was a video cassette addressed to Mr Orji and intercepted by New Zealand Customs which contained fake immigration stamps for entry into and exit from Fiji and Nigeria. The Crown also seized a 2003 pocket planner diary containing diagrams of immigration stamps which look very similar to the stamps seized.

Count 1 – abuse of process

[12] Count 1 arose out of Mr Orji’s use of an admittedly false passport when he first entered New Zealand. The charge was laid under s 142(1)(d)(ii) of the Act which provides as follows:

142 Offences

(1) Every person commits an offence against this Act who—

...

(d) whether within or outside New Zealand, produces or surrenders or passes off a passport, certificate of identity, visa, permit, invitation to apply for residence, or certificate of citizenship, or anything purporting to be a passport, certificate of identity, visa, permit, invitation to apply for residence, or certificate of citizenship,—

...

(ii) knowing it to be forged or to have been obtained fraudulently.

[13] At trial, Mr Orji’s counsel, Mr Isaac Koya, sought to argue in reliance on X(CA746/09) v R[1] that Mr Orji could advance as a defence that he had a reasonable excuse for being in possession of the false passport. In a ruling made in response to an application for discharge under s 347 of the Crimes Act 1961, Judge McAuslan held that a defence of reasonable excuse was not available to Mr Orji.[2]
[14] Mr Tennet initially argued that the Judge was wrong to exclude the defence of reasonable excuse. He submitted Mr Orji should have been able to advance as a defence that at the time he used the passport he had a genuine belief in his status as a refugee.
[15] The argument is plainly untenable. X(CA746/09) v R is clearly distinguishable. The charges in that case were laid under s 31(1)(f)(ii) of the Passport Act which provides:

31 Other offences

(1) Every person commits [an offence] who—

...

(f) Without reasonable excuse, has in his or her possession or under his or her control within New Zealand—

...

(ii) a document purporting to be a passport issued by or on behalf of the Government of any country other than New Zealand that he or she knows or has reason to suspect is not such a passport.

Proof of an offence under this provision requires the Crown to show that the defendant did not have a reasonable excuse for possession of the document. That is not an element of the charge faced by Mr Orji on this count.

[16] However, a defence of reasonable excuse would have been available to Mr Orji if he had been charged under s 142(1)(c) of the Act which provides as follows:

142 Offences

(1) Every person commits an offence against this Act who—

...

(c) Without reasonable excuse, produces or surrenders any document or supplies any information to an immigration officer or visa officer or refugee status officer knowing that it is false or misleading in any material respect;

In the course of argument, it was suggested for the first time that the decision to prosecute Mr Orji for an offence which did not permit a defence of reasonable excuse was an abuse of process. At the conclusion of the hearing, we invited counsel to file supplementary written submissions addressing this issue.

[17] It is recognised that asylum seekers will often be exposed to the risk of prosecution as a result of their use of false documents. Simon Brown LJ observed in R v Uxbridge Magistrates’ Court, ex parte Adimi that refugees fleeing from prosecution in their home country are usually in no position to do so in a legally orthodox way.[3] The Convention Relating to the Status of Refugees (the Convention)[4] seeks to protect refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution. Article 31 of the Convention states:
  1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
  2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

[18] In X(CA746/09) v R this Court said that it would be contrary to the Convention to prosecute and convict under s 31(1)(f)(ii) of the Passport Act those who present false passports yet who are later granted refugee status.[5] On that basis, the Court approved the practise of not bringing prosecutions against asylum seekers for possession of a false passport until the formal process of denying the asylumseeker refugee status has been concluded.[6] The Crown’s position is that, having regard to the purpose of art 31 and the fact that the prosecution took place after Mr Orji’s refugee status had been determined, there was no abuse of process.
[19] The principles governing the exercise of the jurisdiction to stay a prosecution on account of misuse of the Court’s processes by prosecutors are well established. The jurisdiction will be exercised sparingly and only in cases where the abuse amounted to a wrongful use of the processes of the Court itself.[7] The case must truly be one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority which fall short of establishing that the process of the Court is itself being wrongly made use of.[8]
[20] As discussed in the leading case of Fox v Attorney-General, the courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. [9] It is only where to countenance the continuation of the prosecution would be contrary to the recognised purposes of the administration of criminal justice that a court is justified in intervening.[10] In Fox v Attorney-General, this Court articulated the threshold test as follows:[11]

These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.

[21] Mr Lillico submitted it was not an abuse of process for the prosecution to charge Mr Orji under a provision which did not permit a defence of reasonable excuse as the protection afforded by art 31 no longer applied to him. He found support for that proposition in the views of the authors of The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary who say:[12]

Article 31 applies to “refugees” without any further qualification. Does this term refer to recognized refugees only, or to asylum seekers as well? A limitative interpretation would be at odds with the declaratory nature of refugee determination, based on the premise that: “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition.” Until it is determined in a final decision that a particular asylum seeker is not a refugee, the benefits of Art. 31, para. 1 must be accorded to her or him. This has been confirmed in the Adimi case, in which Simon Brown LJ thought Art. 31 to extend “not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees)”.

A practical argument further supports this conclusion. Swift and effective asylum procedures would be hampered if asylum seekers had to devote considerable time and energy to penal procedures while simultaneously pursuing their asylum claim.

In those countries where Art. 31, para 1 has been implemented as a defence against criminal liability for illegal entry or presence, it appears that the applicant need only “adduce sufficient evidence in support of his claim to refugee status to raise the issue”. The prosecution then “bears the burden of proving to the usual standard that he is not in fact a refugee”.

[22] In R v Asfaw the House of Lords accepted that an asylum seeker is entitled to the protection of art 31 and a prosecution which denied a refugee the ability to rely on the Convention was an abuse of process.[13] The appellant had used a false Italian passport in travelling through the United Kingdom en route to the United States. She faced two charges, only one of which allowed a statutory defence that gave effect to art 31. The majority held that the effect of bringing a charge which did not attract the art 31 defence was to expose the appellant to the imposition of a penalty for doing something against which she was entitled to the protection of art 31. In the absence of anything to show that a legitimate purpose was served by including the second count in the indictment, the prosecution constituted an abuse of process.[14]
[23] The circumstances of this case are plainly distinguishable from those in Asfaw. At the time of her prosecution and trial, Ms Asfaw’s application for refugee status had not been determined. She was subsequently formally recognised as a refugee. Accordingly, she was entitled to the protection of art 31. Mr Orji’s position is, of course, quite different. He was not charged until after his application for refugee status had been adversely determined. He could not avail himself of the protection afforded by art 31.
[24] That is not, however, the end of the matter. An adverse finding on whether a person has refugee status does not necessarily exclude a defence of reasonable excuse. This Court said in X(CA746/09) v R:

[27] We consider that in principle a person with a genuine belief in their status as a refugee could be considered to have a reasonable excuse for the purposes of s 31(1)(f). That is, because of the circumstances facing asylum seekers as outlined above, it may be objectively reasonable for them to carry false documentation, regardless of whether they are granted asylum or not. We add that the genuine belief must be bona fide. A genuine belief that one will successfully attain refugee status held simultaneously with the knowledge that in fact one is not entitled to refugee status will not give rise to a reasonable excuse. In the end, these questions are all questions of fact. As the Crown very properly conceded, X’s arrival interview and his account of a brush with the Syrian intelligence service was enough to put “reasonable excuse” in issue: the Crown then had the burden of proving that it was not objectively reasonable for the appellant to think that he could be regarded as a refugee in this country. Whether an accused has such a belief is a question of fact.

[25] After discussing the Judge’s directions, the Court went on to say:

[36] Moreover, the Judge’s own conclusion as to the correct answer was reached on the basis of a misapprehension of the nature of [Refugee Status Appeals Authority (RSAA)] decision-making, especially as it stands in contrast to criminal justice processes. The RSAA’s evaluation that the appellant was not a refugee was not equivalent to an exclusion of the defence of reasonable excuse.[15] Notwithstanding the appellant’s failure to gain refugee status, there may still have been a factual basis available to the jury, not excluded by the prosecution to the required standard, that would have allowed it to uphold the defence of reasonable excuse and deliver not guilty verdicts. Specifically, the jury may have acquitted on the grounds that there was at least a reasonable doubt that the appellant had a bona fide belief in his claim to refugee status as a consequence of being detained and beaten by authorities in the early 1990s. The jury was not left that possibility to consider.

[26] The Court had earlier quoted the following passage from the decision of the Supreme Court in Zanzoul v R declining leave to appeal: [16]

We are ... prepared to assume that by reason of Article 31 of the Refugee Convention it might be an abuse of process to charge a refugee with a passport offence where the passport has been used as a means of putting the refugee in a position to claim refugee status.

[27] The adverse decision of the RSAA[17] could not therefore have prevented Mr Orji from advancing a defence of reasonable excuse. Was it then an abuse of process to charge him with an offence which did not permit him to do so when the facts could have also have supported a charge under s 142(1)(c) of the Act or, as in X(CA746/09) v R, under s 31(1)(f)(ii) of the Passports Act? In our view, the answer is “no” for the simple reason that, regardless of the RSAA’s finding, there was no realistic prospect of a defence of reasonable excuse succeeding.
[28] Mr Orji’s case for refugee status rested on his fear of persecution as a Christian if he returned to Nigeria. He had given the Refugee Status Branch (RSB) of INZ and the RSAA a hair-raising account of his flight from Nigeria as a stowaway on a ship following an attack on his father in the state of Kaduna in November 2002. He told them that following the attack he and others had been captured and held in cages in a bush camp. Two had been taken from their cages and castrated and beheaded in front of the other captives. Mr Orji managed to escape. He was fortunate to meet a fellow Christian who assisted him to stowaway. The first port of call of the ship was in Indonesia.
[29] The RSB decision-maker had expressed considerable scepticism about Mr Orji’s credibility. He referred to “the long and unbroken series of coincidences and strokes of good fortune” that enabled him to escape from his kidnappers and find his way to New Zealand.[18] The coincidences were seen as “so extensive and seamless” as to give “an air of unreality” to much of his claim.[19] The RSB decisionmaker also commented on Mr Orji’s lack of knowledge about the Kaduna state. He was unable to name any of the 23 local government areas in the state and only one city. The decision-maker concluded, however, that:[20]

[b]y a very narrow margin [he] has not been able to find the confidence that the core of [Mr Orji’s] account should be rejected.

[30] On appeal, the RSAA accepted what it also described as “the core” of Mr Orji’s account including his being subjected to a violent attack in November 2002.[21] It continued:[22]

In making these findings the Authority has extended to the appellant the benefit of the doubt despite reservations concerning parts of his story, in particular, the account of his escape and departure from Nigeria and subsequent travel to New Zealand.

The RSAA concluded that there was a real chance of persecution if Mr Orji were to return to Kaduna but there was alternative protection available for him in Lagos.[23] On that basis, he had been unable to make out a claim for refugee status.

[31] However, by the time the charges against Mr Orji were laid, a somewhat different picture had emerged. Evidence had been found that cast serious doubts on key aspects of Mr Orji’s account. At trial, evidence was given of a diary found at Mr Orji’s home address which recorded that in February 2002, nine months before Mr Orji said he left Nigeria by ship, he had flown from Lagos to Jakarta via Germany and Singapore. The prosecution also produced a photograph dated 14 November 2002 of Mr Orji in Jakarta. This was a month before the date on which he said he arrived in Indonesia. The prosecution relied on a number of documents found in Mr Orji’s possession containing detailed information about Kaduna which indicated Mr Orji had been “educating” himself about that region of Nigeria.
[32] The evidence subsequently found completely undermined the factual basis for Mr Orji’s claim to have held a genuine belief that he was entitled to claim refugee status. It showed that his account of fleeing Nigeria by sea in November 2002 was a complete fabrication, as was his claim to have lived for some years in the state of Kaduna.
[33] Possessed of this information, the prosecutor’s decision to charge Mr Orji with an offence that did not permit a defence of reasonable excuse was reasonable. It could not be suggested that it was other than a legitimate exercise of prosecutorial discretion. It did not run counter to New Zealand’s obligations under the Convention. It could not be suggested that the decision involved bad faith or some improper motive or on any other basis resulted in prejudice to Mr Orji.
[34] The claim of an abuse of process in relation to count one must accordingly fail.

Withholding passport

[35] Mr Tennet also complains of prosecutorial misconduct which he says prevented Mr Orji from producing a new passport at trial. He submits that a miscarriage of justice resulted.
[36] Mr Orji applied for a Nigerian e-passport on 5 September 2010. He made the application when two officials from the Nigerian Immigration Service were visiting Auckland for a two-day passport intervention exercise. A passport was issued with the date of issue of 25 October 2010, although it is clear that the passport was actually issued much later than that.
[37] The application was made contrary to Mr Orji’s conditions of bail. He was required to surrender his Nigerian passport and not to apply for any travel documents. Subsequently, Mr Orji successfully applied to amend the conditions of bail so as to permit his application for a new Nigerian passport. The order was made by Judge Moses in the Manukau District Court on 9 November 2010. The following condition was added:

Permit application of new Nigerian passport and the passport to be sent to Mr Orji’s counsel who undertakes to surrender it to the Court.

[38] On the same day, Mr Russell Ogilvy, an officer with the Fraud Branch of INZ, wrote to the Nigerian High Commission in Canberra advising that Mr Orji was facing charges under the Act and the Crimes Act 1961 and informed the High Commission that he was subject to a Court ordered bail condition that he not apply for any travel documents. The letter went on to say that he had made application to the Court for a variation to his bail conditions to enable him to apply for a new e-passport. The letter continued:

The Crown Solicitor on behalf of Immigration New Zealand will be opposing this variation.

I am greatly concerned that Mr ORJI has made an application to the Nigerian Consulate of Australia for a new passport.

I am further concerned if he is issued with a new passport it will not only be in the name and date of birth which the Crown Solicitor charges is false, but also that the application was made in direct breach of a court bail condition.

Immigatration New Zealand has been supplied Birth Certificates for Jeffery Ugochukwu ORJI using the date of birth of 17/10/1979.

These details have been verified in Nigeria as being false.

Would you please confirm to the writer that a passport has been applied for by Jeffery Ugochukwu ORJI and the current status of that application.

Can you please contact me as soon as you receive this letter to discuss what action you will be taking in this matter.

[39] In cross-examination at the hearing it was put to Mr Ogilvy that he wrote the letter in order to override the Judge’s order. He denied that. He said that he sent the letter in order to advise the Nigerian High Commission that at the time Mr Orji made the application he was prohibited by his terms of bail from doing so. He said he wrote after becoming aware that Mr Orji had applied for the passport. He did not specifically respond to a suggestion that he wrote the letter with knowledge that Mr Orji’s conditions of bail had been amended to permit him to apply for a new passport. The terms of the letter clearly suggest otherwise.
[40] The Nigerian High Commission replied by letter on 24 November 2010. The letter advised that the High Commission was still trying to establish the status of Mr Orji’s e-passport application with the Nigerian Immigration Service in Abuja.[24] The letter confirmed that officials of the Nigerian Immigration Service had visited Auckland for a passport intervention exercise. The letter said there had been a large number of applications made by Nigerians for the new e-passport “particularly with the imminent invalidation of the old Nigerian passports as travelling documents”.
[41] On 4 May 2011, Mr Koya sent an email to counsel for the informant, Mr Peter Dean. He said that he had been advised by Mr Orji that Ms Kerri Fergusson, another INZ officer, had stopped the Nigerian Embassy in Australia from issuing Mr Orji a new passport. He asked Mr Dean to advise “under what authority she did this”. In the absence of a reply, Mr Koya sent a further email to Mr Dean on 23 August 2011 and another on 8 September 2011.
[42] Mr Dean replied on 11 September 2011. He said it was not correct to say that Ms Fergusson had asked the Nigerian High Commission not to send the passport to Mr Orji. He disclosed that Mr Ogilvy had written on 9 November 2010 and attached a copy of the letter to which, he said, no reply had been received.[25] Mr Dean noted that Judge Moses had directed that any passport received be lodged with the Court. He asked Mr Koya whether he had done that.
[43] On 23 August 2011, Mr Koya also wrote to the Nigerian High Commission recording that Mr Orji had advised him that his new passport had not been sent “because of some difficulty it may create with the New Zealand Government”. Mr Koya advised that Mr Orji had been retrospectively permitted to obtain a new passport. He attached a copy of the bail bond. He said he understood Mr Orji had been issued with a passport. He asked the Nigerian High Commission to send the passport to him.
[44] It had not been sent by the time the trial commenced on 21 November 2011. However, on 25 November, the Nigerian High Commission sent Mr Koya an email which read as follows:

We refer to your email in respect of your request to forward Mr Orji’s passport particulars and hereby forward the relevant pages to you. This is in recognition of the bail order you attached and also your desire to have this document to expedite action on your desire to use it to verify some information.

[45] In his affidavit Mr Koya says that at the time the email was sent, he would have been making his closing address to the jury. He said he did not receive the passport pages until he arrived at his chambers later in the day. That does not appear to be the case. According to the case on appeal, closing addresses took place on Monday, 28 November 2011. The email was received the previous Friday. Mr Koya made a further application for a discharge at 10.00 a.m. on 28 November when the trial resumed. There is no indication that he mentioned the receipt of new information.
[46] On 19 December 2011, Mr Koya emailed the Nigerian High Commission stating that he needed “the whole passport for Mr Orji’s case”. He asked for it to be urgently couriered to his office. It was sent to him under cover of a letter of 29 December 2011. The passport was surrendered to the Manukau District Court on 10 January 2012.
[47] It is clear that Mr Ogilvy’s letter was not the reason why the passport was not received by the time of trial. There were a number of intervening events. By August 2011 at the latest, the Nigerian High Commission was aware of the amended bail conditions which would permit the release of the passport to Mr Koya and had been asked to release the passport to him. There was no impediment to their doing so. When the further request was made on 23 December 2011, there was an immediate response.
[48] There is, in any event, nothing to indicate that the absence of the passport might have led to a miscarriage of justice. Evidence of an intention to use the passport in Mr Orji’s defence is equivocal. While there were efforts made to obtain the passport before trial, the fact that it had not arrived was not relied on when an adjournment was sought on the first day. No steps were taken to seek leave to introduce the key pages from the passport which could have been relied on as confirmation that a passport had been issued. It was not mentioned when the hearing resumed on 28 November 2011, with an interlocutory application from Mr Koya on another matter.
[49] Further, we question whether the production of the passport would have been of any material value to the defence. Mr Koya said that the new passport would have provided a strong answer to an anticipated Crown argument that Mr Orji had engaged in obtaining passports by giving false information concerning himself. He said that, as Mr Orji would have received three passports from three different passport issuing officers, the submission to the jury would have been that he could not have deceived all three into giving him passports.
[50] A submission along these lines would have carried little weight. There was nothing known about the circumstances in which the first passport was issued. The second was the forged passport that was at the heart of the trial. There was no evidence of the checks carried out by the Nigerian authorities responsible for issuing the new passport. A key plank of the Crown case was that all three passports were issued on the basis of false biographical information. The jury would not be assisted in determining whether Mr Orji knew of the fraudulent nature of the second passport by evidence that he had successfully obtained a further passport relying on exactly the same information.

Refusal to admit documents

[51] In a pre-trial ruling Judge Clapham declined Mr Orji’s application to admit five hearsay documents.[26] He determined that, in terms of s 18(1)(a) of the Evidence Act 2006, the circumstances relating to the documents did not provide reasonable assurance that they were reliable. Mr Orji submits that Judge Clapham was in error.
[52] The documents comprised:
[53] In rejecting the application, Judge Clapham referred to specific concerns regarding particular documents and, more generally, arising out of information provided by INZ. As previously mentioned, one of the planks of INZ’s case was that Mr Orji was not born on 17 November 1979 as stated in the three passports. The Crown case was that he was born on 17 November 1975 and his birth registered in the name of Ugochukwu Johnson Iwuala. The prosecution case at trial was that the word “Orji” was added to the certificate using a different pen. INZ’s position is that Mr Orji has falsely represented his surname as “Orji” and his date of birth as 17 November 1979; he is in fact Ugochukwu Johnson Iwuala born on 17 November 1975.
[54] In an affidavit filed in opposition to Mr Orji’s application, Ms Fergusson referred to enquiries she had made in Nigeria which confirm that “Orji” was added to the copy of the birth certificate. For his part, Mr Orji sought to establish that he was one and the same person as Jeffery Ugochukwu Orji who was born on 17 November 1979.
[55] In denying Mr Orji’s application to rely on the five documents, Judge Clapham referred to oddities in the documents themselves as well as the matters of concern raised by INZ. They included evidence that the register of birth for 17 November 1979 had been recently added. In the documents which Mr Orji sought to rely on, the Judge pointed to the obviously different typeface used for the date and Mr Koya’s address in the first of the five documents. He referred to the different spelling of names in documents adduced, for example, Jeffrey and Jeffery and three variations on Ugochukwu. He concluded that the circumstances relating to the documents did not provide reasonable assurance that they were reliable. He said that having regard to the specific issues apparent on the face of the documents and the criticisms made by the Crown, he had grave concerns as to the “manufacture and accuracy” of the documents.[27]
[56] We can find no reason to differ from the Judge’s assessment. Indeed, his ruling appears to have been inevitable having regard to the irregularities and anomalies apparent from the documents themselves. Mr Tennet suggested that the documents should have been admitted and their reliability left to the jury to assess. However, as Mr Lillico submitted, a Judge has the responsibility for determining whether the threshold is met in a gate-keeping role.[28] This is quite different from the jury’s function of assessing the reliability of properly admissible evidence.

Refusal to adjourn

[57] Mr Tennet advanced as a separate ground of appeal that Judge McAuslan erred in refusing Mr Orji’s application to adjourn the trial to enable him to appeal against the refusal to admit the hearsay evidence. There was power to adjourn if it had been in the interests of justice to do so.[29] Judge McAuslan commented that there seemed to be perfectly adequate reasons for Judge Clapham’s ruling[30] and that Mr Orji would not be prejudiced by his inability to rely on documents which appeared to be “inherently unreliable”.[31] We agree with her assessment and her decision to refuse the application to adjourn.

Unfair trial

[58] Mr Tennet submitted that the defence was taken by surprise or “ambushed” as he put it by an unexpected change in the Crown case which effectively prevented Mr Orji from being able to adequately put his defence.
[59] This ground of appeal focused on four exhibits introduced into evidence by Ms Fergusson. Two were Nigerian drivers licences, one in the name of Ugochukwu Jeffery Orji, the other in the name of Orji Jeffrey Ugochukwu. They were issued, respectively, on 17 January 2007 and 12 December 2003. The other two documents were Nigerian police character certificates, in the names of Orji Jeffery Ugochukwu and Orji Jeffrey Ugochukwu dated 11 August 2003 and 12 September 2005. All documents had been found in the course of the search of Mr Orji’s home.
[60] In her evidence, Ms Fergusson cast doubt on the authenticity of the documents. She referred to the fact that the driver’s licence issued in 2007 recorded Mr Orji’s blood group as B and his height as 1.7 metres whereas his blood group was recorded on the other driver’s licence as O positive and his height as 1.5 metres. She said the licences had a one-dimensional barcode instead of a two-dimensional barcode. Ms Fergusson also said that, in her opinion, the photograph on one of the licences was not of Mr Orji.
[61] The police character certificates certified that, according to the criminal records of the Nigeria Police, there is no trace of any convictions recorded in the name stated. Ms Fergusson pointed out that the certificate issued in 2005 spelt Mr Orji’s middle name as “Jeffrey” whereas the certificate issued in August 2003 spelt it as “Jeffery”. She said there is a discrepancy in both certificates as to the issuing authority of the relevant passport.
[62] Mr Tennet said that “the landscape changed substantially” when these exhibits were pronounced to be false. Mr Orji was caught by surprise and, because of the earlier ruling excluding hearsay evidence, was unable to put forward documents that may have assisted him.
[63] We cannot see any unfairness in the Crown’s approach. The documents were referred to in Ms Fergusson’s brief. The defence was on notice that the Crown case was that Mr Orji obtained forged documents to support his applications to INZ. The Crown specifically referred to false Nigerian driver’s licences in opening and the features to which Ms Fergusson drew attention plainly raise serious doubts as to their authenticity. In cross-examination she made it clear she was not saying the police certificates were not genuine, merely drawing attention to apparent irregularities.
[64] As Mr Lillico pointed out, Ms Fergusson’s commentary on the exhibits was largely to draw attention to inconsistencies and anomalies which were apparent on the face of the documents themselves. It was perfectly permissible for Ms Fergusson to draw the jury’s attention to these matters for the purpose of explaining the relevance of the evidence to the Crown case.

Expert evidence

[65] Mr Tennet went on to complain that what he described as “untrammelled opinions” expressed by Ms Fergusson were not the subject of judicial direction. When pressed, he gave as examples the evidence of Ms Fergusson in relation to the police certificates; advice received from Nigeria that the birth certificate for 17 November 1979 was false; her view that Mr Orji was in fact Ugochukwu Iwuala; and comments she made about handwritten notes found in Mr Orji’s possession which referred to a particular area of Nigeria relied on by Mr Orji in his claim for refugee status. Mr Tennet argued that Ms Fergusson had expressed opinions of a conclusory nature which should have been covered by the direction given by the Judge as to the way in which expert evidence should be approached.
[66] Ms Fergusson did not lay claim to particular expertise outside her experience as a former police officer and as a fraud investigator with INZ. The opinions she gave either related to matters which she was well placed to assess, such as the anomalies in the driver’s licences and whether the photograph was of Mr Orji, and on information she had obtained from Nigerian authorities in the course of her investigations. As Mr Lillico said, she was effectively drawing together the evidence to express the Crown theory of the case in a manner familiarly encountered when the officer in charge of an investigation gives evidence. It would not have been appropriate to identify her as an expert and to incorporate her in the direction given by the Judge in relation to a police document examiner and fingerprint expert. That would have run the risk of overstating the weight that could properly be attached to her evidence.

Inferences

[67] Mr Tennet criticised the Judge’s directions on the use of inferences. He said she failed to point out that if there were two inferences of equal weight that could be drawn from the evidence, the jury should adopt the inference that is favourable to the accused.
[68] There is nothing in this ground of appeal. The Judge gave a full direction on the use of inferences, emphasising that the jury was entitled to come to logical, reasonable and fair deductions from evidence that had been accepted as reliable. She related the direction to the key issue of knowledge that the passports had been forged or dishonestly obtained. She specifically addressed the defence argument that the evidence did not support any such inference. She had earlier emphasised that in respect of all counts the key issue of knowledge had to be proved beyond reasonable doubt.
[69] It was made absolutely clear that on the key issue of whether knowledge of fraud or forgery could be inferred, Mr Orji must be given the benefit of any reasonably based doubt. Any elaboration of the kind contended for by Mr Tennet would have been superfluous.

Application to admit new evidence

[70] Mr Orji applies for leave to adduce 17 documents as evidence on appeal. We are satisfied that none meet the test for admission at this stage.[32] Most of the documents are not fresh and would or could have been available to Mr Orji to adduce at trial. Most do not constitute credible evidence. None might reasonably have led to a finding of not guilty. We will state briefly why each document does not meet the threshold.

Result

[71] All grounds of appeal having failed, the appeal is dismissed. The application for leave to adduce further evidence on appeal is also dismissed.





Solicitors:
Crown Law Office, Wellington for Respondent

[1] X(CA746/09) v R [2010] NZCA 522.

[2] R v Orji DC Papakura CRI-2009-092-7588, 24 November 2011.

[3] R v Uxbridge Magistrates’ Court, ex parte Adimi [2001] QB 667 (QB) at 673–674.

[4] Convention Relating to the Status of Refugees 189 UNTS 150 (opened for signature 27 July 1951, entered into force 22 April 1954).

[5] At [21].

[6] At [21].

[7] Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.

[8] Moevao v Department of Labour, above n 7, at 470–471.

[9] Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [31].

[10] Moevao v Department of Labour, above n 7, at 482.

[11] At [37].

[12] Andreas Zimmermann (ed) The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press, New York, 2011) at 1253.

[13] R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061.

[14] R v Asfaw, above n 13, at [31]–[34] per Lord Bingham and [71] per Lord Hope.

[15] See Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [35]–[37] as to the nature of “fact-finding” by the RSAA.

[16] Zanzoul v R [2008] NZSC 44 at [11].

[17] Refugee Appeal No 74697: Jeffrey Ugochukwu Udodinma Orji RSAA Auckland, 28 October 2003.

[18] Jeffrey Ugochukwu Udodinma Orji RSB Auckland Claim No 4664714, 16 June 2013 at 14.

[19] At 14.

[20] At 15.

[21] At [24].

[22] At [24].

[23] At [48].

[24] This advice confirms that the passport was issued well after its stated date of issue – see [36] above.

[25] He was incorrect. As previously mentioned above at [40], the Nigerian High Commission replied on 24 November 2010.

[26] R v Orji DC Manukau CRI-2009-092-7588, 17 November 2011.

[27] At [27].

[28] Adams v R [2012] NZCA 386 at [26].

[29] Crimes Act 1961, s 379A(6). (This section was repealed on 1 July 2013.)

[30] At [5].

[31] At [11].

[32] As set out in R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27]; and see Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25]; and Lundy v R [2013] UKPC 28 at [120].

[33] See [52(b)] above.

[34] At [49]–[50].

[35] At [52(c)] above.

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