Ani v R [2014] NZCA 201 (28 May 2014)

Last Updated: 10 June 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA553/2013 [2014] NZCA 201
BETWEEN	ANTHONY OKECHUKWU ANI Appellant
AND	THE QUEEN Respondent

Hearing:	31 March 2014
Court:	O’Regan, Keane & Andrews JJ
Counsel:	S J Gray & E J Burton for Appellant J M O’Sullivan for Respondent
Judgment:	28 May 2014 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The conviction and sentence are quashed.

C No retrial is ordered.
____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

[1] At trial in the Auckland District Court, Anthony Ani, a Nigerian national who entered New Zealand in June 1998 claiming refugee status, was convicted of four counts of supplying false information to an immigration officer between May 2006 and December 2009.^[1]
[2] Mr Ani was found guilty of having falsely stated on four occasions that he was in a genuine and stable relationship with his wife, Marae Tataio, whom he married on 26 May 2004: first on 1 May 2006 in a residence application; then on 13 June 2006 at an interview with an immigration officer; and finally on 27 January 2009 and 21 December 2009 when applying for work visas.
[3] The Crown’s case at trial was that at the time when Mr Ani made those four statements, his relationship with Ms Tataio was neither genuine nor stable. They were not then living together as a couple. They were not known to others to be a couple. Their relationship had not endured. It had never begun. The Crown’s case was that their marriage was a sham; a device to obtain residency and nothing more.
[4] The Crown’s case was also that Mr Ani’s residency application on 1 May 2006, the subject of his first conviction, was false in a further way. In that application Mr Ani claimed to have seven adopted children in Nigeria; the children of his brother and sister, both of whom had died. However, he was acquitted of seven counts of supplying false birth certificates relating to those children. We were invited to accept, therefore, the likelihood that the jury found him guilty of that first offence only because it was satisfied he had been misleading about his marriage.
[5] On that assumption, which we accept for the purpose of this appeal, Mr Ani appeals his convictions. Mr Ani contends that the jury’s verdict was insupportable on the evidence and therefore unreasonable, and that his convictions must be set aside.

A circumstantial case

[6] At trial the Crown did not call Ms Tataio to say that she and Mr Ani had joined in a sham marriage. The Crown’s case was circumstantial and relied instead first on the fact that Mr Ani and Ms Tataio married soon after the Refugee Status Appeal Authority in February 2004 declined his appeal against the 2002 decision of the Immigration Service to deny him refugee status.
[7] Secondly, the Crown relied on what Mr Ani had said to the Immigration Service, as to when he and Ms Tataio met and as to the nature of their relationship. It relied on evidence that he and Mrs Ani had never been seen to live together as a couple, suggesting that any financial help he had given her was part of a bargain; and on the fact that in 2008 and 2010 she gave birth to two children whose father was Abel Masters, the father of two of the five children she had prior to her marriage to Mr Ani.
[8] Mr Ani did not call Ms Tataio to confirm that their marriage was genuine and stable. Rather, he himself gave evidence that it was so, and that it remained so at the date on which he was charged. His evidence was that Ms Tataio became pregnant to him soon after their marriage, but miscarried on 14 January 2005; that he supported her financially and that on the date he was ultimately charged her home remained his. He called Ms Tataio’s aunt, Ms Temu, to say that she had introduced them. She confirmed that when Mr Ani was charged, he and Ms Tataio continued to live together.
[9] In the face of that defence evidence, Mr Ani contends, the jury could not reasonably infer beyond reasonable doubt that his marriage was a sham on the four occasions when he declared it to be stable and genuine.

The statutory test

[10] This appeal is to be decided under s 385(1)(a) of the Crimes Act 1961, which applies even though it has now been repealed, and it states that this Court must allow Mr Ani’s appeal if it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
[11] In R v Owen^[2] the Supreme Court, in endorsing the decision of this Court in R v Munro,^[3] said that the essential question under s 385(1)(a) is whether the verdict is unreasonable having regard to the evidence. If it cannot be supported by the evidence it has to be unreasonable.
[12] In Munro, as this Court said, the question imposed by s 385(1)(a) is “whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant”.^[4] Or, as the Court then put it, it is whether on all the evidence the verdict is one that “no jury could reasonably have reached to the standard of beyond reasonable doubt”, bearing in mind that this Court on appeal “is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact”.^[5] The test is not “whether the verdict is one that no jury could possibly have come to”.^[6]
[13] Finally, as the Supreme Court concluded in Owen, this issue is not to be complicated by asking whether on the evidence the verdict was “unsafe, unsatisfactory or dangerous to convict”. As it then said, “These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves”.^[7]

An issue of inference

[14] To be satisfied beyond reasonable doubt that Mr Ani’s four statements concerning his relationship with Ms Tataio were false, the jury had equally to be sure that their marriage was a sham.
[15] The issue on this appeal, therefore, is whether the jury could reach those two conclusions beyond reasonable doubt, in the absence of direct evidence. It is the invariable issue whenever convictions relying on a Crown circumstantial case are challenged on appeal. The question is not whether each strand of evidence in the Crown case, on which the jury were entitled to rely, was singly probative. It is whether all the strands of evidence in the Crown case were cumulatively probative.^[8]
[16] In order to assess whether the jury’s verdict was supportable in that circumstantial sense, we now outline the main aspects of the evidence on which the Crown relied, the significance of which the defence contested.

Significance of marriage date

[17] The Crown case at trial was that when on 26 May 2004 Mr Ani married Ms Tataio he was no longer able to remain in New Zealand on a claim of refugee status. He had been declined that status by the Immigration Service in 2002, and in February 2004 the Refugee Status Appeal Authority had declined his appeal.
[18] At the date of his marriage Mr Ani had appealed to the Minister of Immigration (the Minister), still relying on his claimed refugee status. But, the Crown’s case was, in marrying Ms Tataio he set out to assure himself of the ability to obtain a work visa, under the partnership category, and that required at least a 12 month relationship. To secure that he had to marry Ms Tataio when he did.
[19] To confirm that the marriage was a device, the Crown also relied on Mr Ani’s own witness Ms Temu, Ms Tataio’s aunt, who said that she and other women in her family, including Ms Tataio, knew Mr Ani needed help. Ms Temu considered marrying him herself, because she liked to help people, but her son did not agree. Ms Tataio had recently broken up with Mr Masters and so Ms Temu told Ms Tataio about Mr Ani’s predicament.
[20] Equally suggestive, the Crown contended, was that Mr Ani, when questioned, said five times that he had first met Ms Tataio in early 2004. But, when confronted with his earlier statement that they had met in 2002, he immediately adopted that earlier date. He was equally inconsistent as to how they met.
[21] When asked, furthermore, why he married Ms Tataio, he did not suggest that it was out of affection. He said only that he had married her because he was divorced. But that was complicating in itself. The Crown also contended that the 2001 Nigerian divorce certificate on which Mr Ani relied to marry Ms Tataio was not genuine. Mr Ani’s own witness, Mr Biu, accepted that it was not.
[22] These Crown inferences must then be set against the contrary inferences invited by the defence, the first of which was that, at the date of the marriage, the Minister had still to decide whether Mr Ani should be denied refugee status. Until the Minister decided as such in November 2005 Mr Ani did not know whether he had lost that status irrevocably.
[23] Moreover, as Mr Ani contends on this appeal, even if his Nigerian divorce certificate was not genuine, he was not charged with any related offence. Nor was it established that he knew that the certificate was false. Nor indeed was there any issue as to the validity of his marriage to Ms Tataio. The only issue was whether their relationship was stable and genuine.
[24] Mr Ani also relied at trial, as he does on this appeal, on the fact that, after he was declined refugee status, and had to leave New Zealand to apply for a work visa, he spent the three months that entailed, February 2005 to May 2005) in the Cook Islands with Ms Tataio’s family. Then, when he returned, he had an open work permit. He did not rely on his marriage to Ms Tataio until he made a further application on 9 September 2005.
[25] Finally, Mr Ani relied at trial, as he does on this appeal, on his interview with the immigration officer on 13 June 2006 (the subject of his second conviction), in which he said that his relationship with Ms Tataio was stable and genuine, and the fact that Ms Tataio was present and she agreed with these statements.

Financial support

[26] There was no issue at trial that Mr Ani had given Ms Tataio financial support. The issue was whether he had done so as part of their bargain, as the Crown contended, or, as he contended, because they were in a genuine and stable relationship. This issue turned primarily on three bank statements produced by consent.
[27] To contend that Mr Ani had assisted Ms Tataio only because they had a bargain, the Crown produced a Kiwibank statement, dated 10 February 2006, in their joint names, addressed to the address Mr Ani contends they shared, to point out that Ms Tataio paid her WINZ benefit into that account but Mr Ani did not pay in his wages. To that Mr Ani replied that he had chosen not to pay in his wages, because Ms Tataio was always in overdraft.
[28] To contend that he did support Ms Tataio fully, consistent with their relationship being genuine and stable, Mr Ani produced an ASB bank statement, dated 27 December 2009, into which his pay from Middlemore Hospital and the Challenge Trust were paid, and out of which, fortnightly, he met Ms Tataio’s rent on her tenancy with Housing New Zealand Limited.
[29] Mr Ani also produced a National Bank statement in his own name, dated 9 March 2010, showing that he made automatic payments for electricity consumed at the address; and payments to WINZ to repay a debt Ms Tataio incurred by continuing to claim the domestic purposes benefit after they married.
[30] Mr Ani also gave uncontradicted evidence that he assisted Ms Tataio with money for food and family expenses; that in November 2009 he had bought her a van, because she never returned his car to him in time for him to go to work; and that on 25 January 2012 they together took out a joint loan.

Masters’ children

[31] The Crown contended at trial that the marriage was a sham because Ms Tataio never ceased her relationship with Mr Masters, with whom she already had two children at the date of the marriage. They had two further children, born in April 2008, and in January2010.
[32] The Crown also relied on Mr Ani’s response, when asked why he had stayed with Ms Tataio after the birth of those children. He said “I don’t actually know, this immigration of the thing ... because I was thinking if I left her at initial time, that maybe I’ll be sent away ... so that’s why I didn’t move out.”
[33] As against that, Ms Temu said Mr Ani helped to look after those children as well as Ms Tataio’s other children, in the course of their continuing relationship.

Living together

[34] Finally, to demonstrate that Mr Ani and Ms Tataio were never in a relationship after their marriage, the Crown set out to prove that they never actually lived together.
[35] Even Mr Ani conceded, the Crown said, that he and Ms Tataio had only shared a bedroom when they married and that, afterwards, they had slept in separate bedrooms. But Mr Ani also said that, after they married, he had never slept in any other house. That was the critical issue.
[36] To establish that this claim by Mr Ani was false, the Crown relied on the evidence of Constable Spiro, who visited Ms Tataio’s house between June 2006 and mid 2007, and occasionally after that, to check on one or more of Ms Tataio’s children, in the first instance monthly and then more occasionally.
[37] On those visits, which Constable Spiro made unannounced during the day, Mr Ani was never present and Ms Tataio never identified him as her husband or partner. Constable Spiro only met Mr Ani in 2010 when he was at the house on a visit she made then, but he was only introduced to her by his name, not as Ms Tataio’s husband or partner.
[38] As against that, Mr Ani contended that he could have been away at work when Constable Spiro visited in 2006–2007 and that the Crown’s evidence did not establish otherwise. He also relied on the fact that Constable Spiro was aware that an adult male was living at the house and that he was the only male she ever met there. She did not meet Mr Masters at the house.
[39] Finally, the Crown relied on the search of the house made by the police and the Immigration Service under warrant on 27 August 2010 at 9.16 am, to verify whether Mr Ani did live at the house. He was not present but, after being telephoned, soon arrived. In the main bedroom the police found items belonging to Mr Ani in a suitcase. In his car they found a duvet, an iron and clothing.
[40] Mr Ani gave evidence at trial that he was working fulltime as a healthcare assistant at Middlemore Hospital. He had the duvet so he could sleep in his car during his one hour or 30 minute breaks. He had done his laundry, he said, the day before his arrest and he had taken his clean clothes and the iron so that he could iron his clothes during his breaks.
[41] Ultimately, Mr Ani relied on Ms Temu to confirm that he did live with Ms Tataio. She said she visited the house regularly, that Mr Ani was often at home, and that he did live there. She said that he and Ms Tataio were affectionate and that when she ate meals at their house Mr Ani sometimes cooked Nigerian food.

Conclusions

[42] On the whole of this evidence, that for the defence as well as that for the Crown, we conclude that the jury ought to have entertained a reasonable doubt as to Mr Ani’s guilt of the four offences; or, to put that conversely, we conclude that the jury could not have been sure that he was guilty.
[43] Mr Ani and Ms Tataio may have married soon after after he was denied refugee status, and by marrying Ms Tataio he may eventually have secured residency. After they married Ms Tataio may have had two further children to Mr Masters. Both these aspects of the evidence clearly put in issue before the jury whether the relationship was genuine and stable. But neither aspect was fatal.
[44] To be genuine and stable their relationship did not have to be ideal; and the essential question for the jury was whether, after they married and despite these two reasons to be sceptical, they shared Ms Tataio’s home, and whether Mr Ani supported Ms Tataio and her family financially and in the other ways common within a shared household.
[45] On the evidence Mr Ani did support Ms Tataio financially, even beyond the point of the 2010 police search. In January 2012 they entered into the joint loan together. And the evidence of Ms Temu confirms Mr Ani’s own evidence that, after he and Ms Tataio married, he also supported Ms Tataio and her children in the other ways common in a shared household.
[46] The Crown case at trial also suffered this significant deficiency. The Crown was not able to advance any evidence to show that after Ms Tataio and Ms Ani married, he ever lived anywhere else. The only evidence the Crown had that he might not have lived with Ms Tataio was the equivocal evidence on the day of the 2010 search. But he still had a suitcase in the main bedroom of the house, and that was more consistent than not with his claim still to be living there.
[47] An irony on this appeal, which is immaterial to the issue whether there was sufficient evidence before the jury, but is material to this appeal, is that when Mr Ani was sentenced to nine months home detention he was directed to serve that sentence at Ms Tataio’s address.
[48] We allow Mr Ani’s appeal. We quash his conviction and his sentence. We see no ground on which Mr Ani should be required to undergo a retrial.

Solicitors:
Public Defence Service, Wellington for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Ani DC Auckland CRI-2010-004-15337, 3 July 2013.

^[2] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

^[3] R v Munro [2007] NZCA 510,[2008] 2 NZLR 87.

^[4] At [86].

^[5] At [87].

^[6] Ibid.

^[7] At [17].

^[8] Thomas v R [1972] NZLR 34 (CA) at 38.