Citation: Regina v Pulusila HOKAFONU [2002] NSWCCA 92
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2002
Judges: Stein JA; O'Keefe J; Buddin J
Background
The appellant was convicted after a jury trial in the District Court on a charge of conspiring to import a commercial quantity of cocaine into Australia, contrary to s 233B(1)(cb) of the Customs Act 1901 (Cth). He was sentenced to 8.5 years' imprisonment with a non-parole period of five years. The Crown alleged that the appellant had agreed with two co-conspirators to tape packages of cocaine to his body, board a flight from Los Angeles to Sydney, and deposit the packages in an onboard rubbish receptacle for later collection and distribution.
The Crown's case rested almost entirely on the evidence of one witness, a co-conspirator named Hardwicke. Hardwicke had received a sentence discount on an unrelated US matter and an indemnity from prosecution in Australia in exchange for his cooperation. The defence case at trial was that Hardwicke had fabricated the story to frame the appellant, allegedly motivated by a personal grievance, and had planted items in the appellant's luggage.
No complaint was made to the trial judge about any of the directions that formed the grounds of appeal. As a result, Rule 4 of the Criminal Appeal Rules was engaged, requiring the appellant to seek leave before arguing each ground.
Legal Issues
- Whether the trial judge's directions under s 165 of the Evidence Act 1995 (Cth) regarding the unreliability of the witness Hardwicke were adequate, including whether the directions properly identified his motive to assist authorities and the benefits he received.
- Whether the trial judge's directions on the jury's use of the appellant's failure to explain certain documentary evidence were adequate.
- Whether the trial judge's directions on the appellant's entry into a pre-existing conspiracy were adequate, including whether the jury was properly directed on the geographic element of the agreement.
Decision
Ground 1: Directions on witness reliability under s 165
The Court found that the trial judge had given extensive and detailed directions on the need for caution before accepting Hardwicke's evidence. His Honour had made it abundantly clear to the jury that the entire Crown case depended on Hardwicke's credibility, and had repeatedly directed the jury that they could not convict unless they accepted his evidence on the essential elements beyond reasonable doubt. While the appellant's counsel identified four alleged deficiencies on appeal, the Court found no direction amounting to error warranting leave under Rule 4. There was no basis to conclude that any omission gave rise to the possibility of real injustice to the appellant.
Ground 2: Directions on the appellant's failure to explain documentary evidence
The Court found that this ground also attracted Rule 4, as no complaint had been raised at trial. On the substance, the trial judge's directions consistently emphasised that the Crown's entire case turned on Hardwicke's credibility. The Court was not persuaded that anything said by the trial judge in this regard involved the possibility of real injustice, and refused leave to argue the ground.
Ground 3: Directions on entry into a pre-existing conspiracy
The Court found no substance in the submission that the trial judge inadequately directed the jury on the geographic element of the agreement. The evidence supported an inference that the agreement was made in Sydney and continued with the drugs to be delivered and distributed in Sydney. The Court noted that the directions on this element were comprehensive and revealed no error. Again, Rule 4 applied and leave was refused.
The Court added that even if all of the appellant's submissions on the directions were accepted, the appellant had not lost the chance of acquittal and the proviso therefore applied.
Orders Made
- Appeal dismissed.
Key Takeaways
- Where no complaint about jury directions is raised at trial, an appellant must seek leave under Rule 4 of the Criminal Appeal Rules on appeal, and leave will be refused unless there is a real possibility of injustice.
- A trial judge's obligation under s 165 of the Evidence Act 1995 to warn the jury about an unreliable witness does not require any particular form of words, provided the jury is clearly and comprehensively directed on the need for caution and the reasons for it.
- Extensive directions emphasising that an entire Crown case depends on the credibility of a single witness can satisfy the requirements of s 165, even if specific aspects of that witness's motive or benefit are not individually enumerated.
- The Court of Criminal Appeal confirmed that the geographic element of a conspiracy charge can be satisfied by inference from the totality of the evidence, and the jury is not required to be directed on every possible alternative location where an agreement might have been reached.
- In dismissing the appeal, the Court applied the proviso, noting that even if the identified deficiencies in the directions were made out, they did not deprive the appellant of a genuine chance of acquittal.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233B(1)(cb)
- Evidence Act 1995 (Cth), s 165
- Criminal Appeal Rules, Rule 4
Cases
- Azzopardi v The Queen (2001) 75 ALR 349
- R v Abusafiah (1991) 24 NSWLR 531
- R v DH [2000] NSWCCA 360
- R v Jeffrey (Unreported, Court of Criminal Appeal, 16 December 1993)
- R v Stewart [2001] NSWCCA 260
- R v Tripodina (1988) 35 A Crim R 183