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Court of Appeal of New Zealand |
Last Updated: 8 July 2016
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA |
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BETWEEN
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Appellants |
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AND
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Respondent |
JUDGMENT OF THE COURT
A Mr Obiaga’s appeal against conviction and sentence is dismissed.
B Ms Leefe’s appeal against conviction is
dismissed.
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REASONS OF THE COURT
(Given by Simon France
J)
Introduction
[1] These appeals arise out of a lengthy drug trial in which the appellants were two of a number of defendants charged in relation to importation of methamphetamine. There were three importations; the appellants’ involvement was limited to the first, which involved approximately 1.5 kg of methamphetamine.
[2] Mr Obiaga was found guilty following a trial before Thomas J and a jury and later convicted on the charges of importing and then possessing the imported drugs for supply. He appeals his conviction of the basis of trial counsel error, and on the ground that the trial should have been abandoned because of a health emergency with a juror that occurred during deliberation. Mr Obiaga also appeals against a sentence of 15 years and 10 months’ imprisonment.
[3] Ms Leefe was convicted of possessing the same drugs for supply. She was recruited by Mr Obiaga to assist him to collect the imported drugs from the courier. Like Mr Obiaga her unsuccessful defence was that she did not know that what was being brought into the country was drugs. Ms Leefe appeals on the basis that the prosecution impermissibly relied upon the out of court statement of a codefendant. She also relies upon the mistrial contention in relation to the juror’s illhealth.
Facts
[4] Detailed analysis of the facts is not needed at this stage. It is sufficient to cite passages from the sentencing remarks of Thomas J:[1]
[5] The first importation was on 13 November 2013, involving 1.5 kilograms of methamphetamine brought into New Zealand by Mr Miranda. Ms Leefe, you were instructed by Mr Obiaga to go to the airport to make sure that Mr Miranda had successfully passed through Customs. Mr Obiaga gave you his flight details and a photograph. The flight was delayed so you left the airport shortly after. Mr Miranda was stopped by Customs. It was found he had over 1.5 kilograms of methamphetamine secreted in his luggage. Mr Miranda agreed to work with the Police to undertake a controlled delivery.
[6] Mr Miranda was instructed by a Daniel Tucker in Nigeria to hand over the bags to a Mr “Alfred Coker” in Auckland. Through text messages and telephone calls between Mr Miranda and Mr Coker, who was Mr Iwu, arrangements were made for Mr Miranda to deliver the bags containing methamphetamine to Mr Coker on 18 or 19 November 2013.
[7] On 18 November 2013, Mr Iwu travelled to Auckland to collect the bags, Mr Miranda waited at the pickup location but no one arrived. Over the next few days, he received phone calls and text messages from a “Suzanne”, who introduced herself as Alfred Coker’s partner, to arrange the handover of the bags. “Suzanne” was subsequently identified as Ms Fiona Ishak who was acting on instructions from Mr Obiaga. Eventually, on 21 November 2013, the handover of the bags to Mr Mark Hughes took place at Mangere Bridge.
[8] Mr Hughes and others, also recruited by Ms Leefe, kept Mr Miranda under observation to see if he were being watched. Ms Leefe was coordinating their activities, while relaying her observations to Mr Obiaga and Ms Ishak.
[9] The bags were handed over to Mr Obiaga at Mr Hughes’ address. Mr Obiaga paid Ms Leefe $500, who, in turn, paid some money to those who had taken part in the delivery.
[10] Mr Obiaga hid the bags in a bush area near the cargo carpark at Auckland Airport.
[11] On 24 November, Mr Obiaga met with Mr Iwu, Mr Okpara and Mr Ochibulu at the carpark to hand over the bags containing the drugs. He located the contents of the bags but not the methamphetamine which had been removed by the Police about an hour earlier. At this time, Mr Iwu suspected that Mr Obiaga had “ripped him off”, and Mr Obiaga suspected that he was “ripped off” by Mr Hughes and Ms Leefe.
[12] Threats were subsequently made by Mr Iwu towards Mr Obiaga’s family in Nigeria.
[5] Of Mr Obiaga’s role, Thomas J added:
[79] ... The Crown says that although you were not the mastermind of the drugring in New Zealand, you were entrusted with supervising the importation. Your counsel opposes that view. I agree with the description submitted by the Crown. It is clear you supervised the importation from a distance. You instructed those who you recruited. You gave Ms Leefe details of Mr Miranda’s flight and showed her a copy of his passport photograph, so she knew who to look out for at the airport. You kept a close eye on those who were working for you.
[80] The Crown says that you stood to gain half of what was in the bags. Although there was some suggestion of that, I am not satisfied of that aspect to the requisite standard. The evidence shows you were expected to hand over the bags to Mr Iwu and, indeed, at the bushes near the aircargo facility, you tried to give him everything you could find. You asked for a fee of $1000 prior to showing them where the bags were located.
[6] And of Ms Leefe’s role:
[100] ... You accept you were motivated by financial gain. You were paid for your involvement, whereas Ms Ishak in fact, [lent] money to Mr Obiaga. I should also add, that although your role was replaceable, you brought in other people, your family members. That arguably increases your culpability. You received instructions and you passed them on to those below you. There is a suggestion, therefore, that you were an important player with a position of responsibility, perhaps more so than Ms Ishak. However, I am not satisfied there is a need to depart from the starting point given in respect of her offending and on which both counsel agree.
Mr Obiaga – trial counsel error
[7] Mr Obiaga was represented at trial by Mr John Clearwater. From partway through the trial Mr David Niven came on board as the additional defence counsel, and as time progressed Mr Niven assumed the lead role. For example, he led Mr Obiaga’s evidence and closed the case. Affidavits were filed by Mr Obiaga and his trial counsel. Although crossexamination notices were filed, none of the deponents was required for oral evidence. This latter fact constrains the observations we can make, but some comment is appropriate.
[8] It is plain Mr Obiaga is not an easy client. Mr Clearwater was his third assigned counsel, and Mr Niven was added during trial after Mr Obiaga approached the Legal Services Agency with complaints about his counsel. It is also plain that some matters to which he now deposes are simply incorrect, and are matters on which it is difficult to see how he could be mistaken.
[9] For example, Mr Obiaga complains he did not know “how and why Mr Niven came to be there”. Yet, Mr Obiaga had initiated Mr Niven’s presence by his complaint to the Legal Services Agency, and minutes of the trial Judge establish that the situation was explained to Mr Obiaga. Counsel also depose as to what happened and what was discussed, and Mr Obiaga’s acceptance of it.
[10] It must be observed that the trial Judge was concerned about aspects of Mr Clearwater’s crossexamination of Ms Ishak. She was a codefendant who had pleaded guilty and testified for the Crown. Her evidence needed to be undermined for Mr Obiaga’s somewhat ambitious defence to succeed. It is clear, however, that the essential challenges were put to her. After the Judge had made known her concerns Mr Clearwater had applied for her to be recalled so he could put further matters that on review he had decided were inadequately put the first time. This application was granted.
[11] It is concerning this witness that Mr Obiaga places most emphasis in his challenge to counsel’s performance. We make two observations. First, the trial Judge when discussing the addition of Mr Niven, and having acknowledged her own concerns about the crossexamination of Ms Ishak, nevertheless observed that the matters that needed to be put to Ms Ishak had been put. Her Honour’s concerns seem primarily to have been forward looking – namely, that the complexity of the trial was going to increase from there, and she was unsure whether Mr Clearwater (who was dealing with a close family illness at the time) would be able to adequately represent Mr Obiaga. Mr Niven’s appointment allayed those concerns.
[12] Second, Mr Obiaga did not assist. Mr Clearwater provides documentary evidence attesting to the ongoing difficulties he had obtaining clear instructions from Mr Obiaga concerning the evidence of Ms Ishak. Sometime before trial he had provided Mr Obiaga with her brief, asked generally for a response, and then spelt out in detail many matters raised in the brief concerning which Mr Obiaga’s input was needed. Three months later Mr Clearwater again wrote explaining the importance of this, and noting he had made numerous unsuccessful attempts to elicit a response.
[13] Mr Obiaga’s present identification of matters he thought should have been put to Ms Ishak, or of matters that he had instructed Mr Clearwater to put, needs to be seen in this light. None are pivotal; some would be contrary to his interests. In relation to this issue of following instructions, where there is a conflict between Mr Clearwater and Mr Obiaga, and noting the absence of challenge to his affidavit, we accept Mr Clearwater’s evidence which is supported by appropriate records. We have already identified concerns we have with Mr Obiaga’s evidence.
[14] Having reviewed the record, we have reached the view that nothing is to be gained by detailing the various matters Mr Obiaga raises, and why we reject them. A general assessment suffices. Mr Obiaga’s trial situation was difficult. His jeopardy was obvious. Not only was he a target of the prosecution, but his codefendants were seeking to distance themselves from the offending by portraying him as the key person involved, and as not passing on to them that the bag contained drugs. Thus Ms Ishak, for example, was crossexamined by counsel for codefendants in a way that emphasised Mr Obiaga’s centrality, and the codefendants’ remoteness.
[15] Ms Ishak’s evidence was supported by records of text messages and intercepted phone calls, it being the case that the courier was intercepted at the airport, after which time the police were monitoring all the events. The Crown case against Mr Obiaga was strong. The only realistic hope Mr Obiaga had of creating a reasonable doubt was to testify. This he did.
[16] In this regard we note that Mr Tennet accepts Mr Clearwater had prepared prior to trial a “very thorough” brief of evidence which obviously informed counsel’s conduct of his defence. Further, this brief was developed during trial, and Mr Obiaga’s evidence was well led by Mr Niven. No complaint is or could be made of this. Finally, of Mr Niven’s closing, Mr Obiaga himself wrote thanking Mr Niven for a “very good” closing and noting he could not ask for more.
[17] Mr Obiaga had a fair trial and the conduct of his defence did not lead to a miscarriage. The groundwork for an acquittal was laid, if the jury found his evidence to be possibly credible. The verdicts indicate the jury reached the opposite view of his credibility, and that, together with a compelling Crown case, explains the outcome.
[18] This ground of appeal is dismissed.
Mr Obiaga and Ms Leefe – juror illhealth
[19] During its deliberation, the jury asked to view again a recorded interview. While it was being shown, the foreperson excused himself for illhealth and returned to the jury room. It was near the end of the day and the balance of the jury remained briefly in the courtroom so that a time could be organised for resuming the next day.
[20] Upon returning to the jury room the foreperson was found collapsed on the floor. He had had a heart incident and was unconscious. One of the jurors was a nurse and commenced resuscitation. The officer in charge was alerted to the situation and also went in to assist. The ambulance arrived and the foreperson was taken to hospital. Fortunately he recovered, and to the jury’s knowledge was alert and out of immediate harm when court resumed the next day. It was apparent that the efforts of the officer in charge and the nurse had probably saved the foreperson’s life.
[21] When court resumed all defendants asked the Judge to discharge the jury pursuant to s 22(3) of the Juries Act 1981. That provision empowers such action:
If a casualty or emergency makes it, in the court’s opinion, highly expedient for the ends of justice to do so.
[22] The Judge recorded the submission advanced in support of a mistrial and it is convenient to repeat that here:
[15] Mr Ryan said he spoke for all defence counsel. He referred to the state of two Police officers involved in the trial yesterday. Detective King was clearly upset, and Detective Robinson, the officer in charge and who had applied CPR, apparently was in tears. In his submission, even the most steadfast juror, being diligent, would still have an emotional or subliminal reaction to events and, in his submission, it was too great a risk to allow the trial to continue. The risk identified by him was that, in his submission, the jurors would not be able dispassionately to detach their minds from the events of 29 April, and there was potential for sympathy and “adoration” of the Police given the life and death situation which occurred and the role of the officer in charge in resuscitating the foreman. In Mr Ryan’s submission it could colour the jury’s perception with the risk that they would then favour the Police case.
[16] Mr Ryan referred to how well the jury were clearly getting on with one another, there being stories of laughter from the jury room during the breaks. In his submission, it was artificial to say the jury would be able to put the event out of their minds.
[23] Thomas J interviewed all the jurors individually and sought their assurance they were willing and able to continue. Having satisfied herself about that, the application was declined.
[24] This was a lengthy complex trial and the jury had begun deliberation. One would not expect a Judge at this point too readily to discharge a jury that was expressing its willingness to continue. By then the jury were aware the foreperson had recovered and was out of immediate danger. Notwithstanding the very dramatic background to this particular occasion, it is far from uncommon for one juror to become unwell. Like the Judge we give no weight at all to the proposition that gratitude to the officer in charge would lead the jury, intentionally or subconsciously, to favour the prosecution case.
[25] Other than those observations, in dismissing this ground of appeal we are content to rely upon the reasoning of Thomas J:
[33] I am satisfied, having spoken to each of the jurors in private and individually, that they are all willing to proceed with their task and that they will undertake that task in accordance with their oaths. There is nothing which gives me any grounds whatsoever to consider that any member of the jury will be affected by sympathy for or appreciation of the Police to the extent of allowing those feelings to influence the deliberations.
[34] I am satisfied that the defendants’ fair trial rights remain well protected. Indeed, as indicated, I have been given no basis at all for concern about those rights.
Ms Leefe – misuse of codefendant’s statement
[26] Section 27(1) of the Evidence Act 2006 provides:
27 Defendants’ statements offered by prosecution
(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.
[27] In this case it is said the prosecution breached this rule by crossexamining Ms Leefe on an out of court statement made by a codefendant, and then by relying on the contents of that statement in its closing address to implicate Ms Leefe.
[28] In order to prove Ms Leefe’s guilt, the prosecution needed to establish that Ms Leefe knew prior to 21 November 2013 that the suitcase contained methamphetamine. As it happens, her son and codefendant Mr Whetu Leefe, when speaking to police following his arrest, said that his mother had told him some days before 21 November that the bag contained methamphetamine.
[29] In the ordinary course of events that out of court statement is not admissible against Ms Leefe. However, during Ms Leefe’s evidenceinchief her counsel introduced the statement. She recounted to Ms Leefe what her son said, and asked for comments. Ms Leefe denied saying that to her son. The Crown then crossexamined Ms Leefe about it, and she again denied saying it.
[30] Mr Whetu Leefe also testified, after Ms Leefe. He denied ever saying that to the police.
[31] The appeal is premised on the proposition that s 27(1) continued to apply so that the Crown could neither crossexamine Ms Leefe, nor use the statement against her. The Crown contend that as it was counsel for Ms Leefe who read the statement into evidence, s 27(1) is not applicable. It is not evidence “offered by the prosecution” but by Ms Leefe, namely that someone else had said she had prior knowledge.
[32] We agree. Ms Leefe has made the tactical decision to confront hearsay evidence that will be heard by the jury but which is not admissible against her. In doing so she has chosen to lead evidence that someone has said that she had the knowledge at an earlier time.[2] Section 27(1) is concerned with evidence offered by the prosecution, but this was evidence offered by Ms Leefe, albeit for the purposes of then denying it. Once admitted it is plain the Crown must be entitled to crossexamine her about it, and to make such submissions concerning her as the evidence allowed.
[33] We do not consider the analysis changes because Mr Leefe testified and denied making the statement, since it is not Mr Whetu Leefe who is the source of admissibility. It is Ms Leefe. The effect of Mr Whetu Leefe’s evidence is to reinforce Ms Leefe’s evidence, but it does not change its nature.
[34] The rule in s 27(1) is a manifestation of the hearsay rule. The out of court statements by a codefendant are plainly hearsay. They are admissible by way of an established exception against the maker of the statement who is a defendant. They remain hearsay in relation to other people including codefendants unless the comaker of the statement testifies and confirms the making of it. Ms Leefe has, without objection, chosen to introduce this hearsay evidence as part of her case, and it thereby becomes admissible for that reason in relation to her trial. If one imagines for example that the trials of Ms Leefe and Mr Leefe had been held separately, and Ms Leefe had followed this same course, it could not be that the Crown in crossexamination was prevented from questioning her about it. That being so, counsel may equally refer to evidence in closing submissions to the extent that the evidence sustains the submission. It follows that this ground of appeal fails.
[35] Criticisms of the summing-up made under this ground of appeal were premised on the proposition that the Crown had breached s 27(1) and the summingup did not adequately address it. We have rejected the premise so that aspect does not need further analysis.
[36] As a further part of this ground of appeal, Ms Thompson referred to a jury request to replay Mr Whetu Leefe’s DVD interview. The proposition was advanced that a further direct warning was required at this point about the inadmissibility of this evidence against Ms Leefe. Apart from the points already made, we add in relation to this that the statement about his mother disclosing the contents of the bag to him was not in the DVD interview by Mr Leefe. It was contained in a prior discussion with a police officer who had recorded it in a notebook. Accordingly, we would not have considered a further separate emphasis of the s 27(1) rule was required just because the DVD interview was replayed.
[37] Finally, we note that Mr Whetu Leefe was in fact acquitted. At least at face value this verdict is reconcilable with Ms Leefe’s conviction only if it is inferred that the jury did not accept that Mr Leefe made the notebook statement to the police, since that purported statement was evidence of guilty knowledge not only against Ms Leefe but also against Mr Leefe himself. It appears the jury accepted it was possible Ms Leefe never told her son prior to 23 November that the bag contained drugs. There was ample other evidence pointing to her prior knowledge.
[38] This ground of appeal by Ms Leefe fails.
Mr Obiaga – sentence appeal
[39] Mr Obiaga appeals a sentence of 15 years and 10 months’ imprisonment. No minimum term of imprisonment was imposed.
[40] The structure of the sentence was to take a 15-year starting point for the importation of 1.5 kg of methamphetamine. Mr Obiaga’s role was summarised by the Judge in the passage cited at [5] above. The Judge then added two years for the possession charge. Although this related to the same drugs, Thomas J did not accept the proposition that no uplift was needed. Her Honour detailed the elaborate endeavour involved in organising the handover of the drugs to the end receiver once Mr Obiaga had possession of the imported drugs.
[41] By way of discount, five per cent was allocated for the fact Mr Obiaga was a first offender, and a further four months for time spent on electronic bail. This led to the end sentence of 15 years and 10 months’ imprisonment.
[42] On appeal Mr Obiaga challenges the starting point, the two-year uplift and the size of the good character credit. The last can be dismissed without further discussion. In the context of serious drug offending of this kind, five per cent is the most that could be expected absent exceptional circumstances, of which there are none.
[43] It is common ground the offending fell within the fourth band of R v Fatu.[3] That band identifies 500 g as its trigger and provides a range of 10 years’ to life.[4] The matters which will then primarily influence placement within the band are quantity or value, and the offender’s role. Matters relied on by Mr Tennet as meriting a much lower starting point are what is submitted to be Mr Obiaga’s late involvement in the enterprise, his relatively limited role of “catcher”, meaning first receiver of the drugs, and his low expectation of profit – in the low thousands.
[44] Before addressing these points we note the considerable advantage a trial Judge has in these circumstances. Assessment of the hierarchy and roles within a drug operation is made after hearing weeks of evidence, and clear evidence is needed to show the Judge has erred in his or her evaluation.
[45] As for the fact that Mr Obiaga came into the operation relatively late as a replacement for someone else, that may be so but it does not deny he was a knowing and willing participant who played the role that he did. Nor was he merely a catcher but rather he assumed responsibility for successfully organising collection of the drugs from the courier. Likewise, he then continued this detailed planning role with concerted efforts to ensure the drugs he now possessed were passed on to the intended recipient for distribution within New Zealand. The Judge was right to acknowledge this separate offending by way of an uplift. The 15-year starting point was well within range, and was proportionate to the starting points taken for codefendants. There is no basis to disturb it, or the two-year uplift. Indeed one can only observe that Mr Obiaga was fortunate that he avoided a minimum term of imprisonment.
Conclusion
[46] Mr Obiaga’s appeal against conviction and sentence is dismissed.
[47] Ms Leefe’s appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for
Respondent
[1] R v Iwu and Ors [2015] NZHC 1438, footnotes omitted.
[2] We do not know whether Ms Leefe knew her son would testify and deny making the statement to the police.
[3] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
[4] At [34(d)].
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