Muliri v R

1. [1]

   THE COURT: On 13 December 2013, following a trial by jury commencing on 4 December 2013, the appellant was convicted of importing, on or about 23 December 2011, a marketable quantity of a border controlled drug, namely, cocaine, contrary to the Criminal Code (Cth), s 307.2(1). On 23 May 2014, the appellant was sentenced to a term of imprisonment of 9 years 6 months, with a non-parole period of 6 years 4 months. The sentence was backdated to commence on 1 December 2013.

2. [2]

   This was the third trial of the appellant on the charge. The jury in the first trial was discharged on the second day of the trial. The jury in the second trial was discharged during deliberations after being unable to reach a verdict.

3. [3]

   The appellant has appealed against his conviction on the sole ground that there now exists fresh evidence that renders his conviction a miscarriage of justice. The appellant sought orders that his conviction be quashed and that there be a new trial.

4. [4]

   On the appeal, the appellant and the Crown both adduced affidavit evidence. Two affidavits were read by the appellant, namely, the affidavit of Matthew Munzenrieder declared 6 January 2016, and the affidavit of Zemari Khatiz declared 6 April 2016. Mr Munzenrieder and Mr Khatiz are solicitors in the practice of Oxford Lawyers and, at the time of swearing their respective affidavits, had carriage of the appeal on behalf of the appellant. The Crown read the affidavit of Samuel Juers Indyk sworn on 27 April 2016, Mr Indyk being a solicitor at the Office of the Commonwealth Director of Public Prosecutions (the CDPP). We will refer later in these reasons to the content of those affidavits.

The appellant’s offence

1. [5]

   The appellant travelled to Sydney from Brazil and was arrested at Sydney Airport on 23 December 2011, after two packages weighing some 2.4955 kg, which contained some 2.005 kg of cocaine, on later analysis found to have a purity of 85 per cent, were found in his black “Primicia” carry on bag. They had been clumsily secreted in the lining of the bag.

2. [6]

   The primary issue at trial was the appellant s knowledge that he was carrying a border controlled drug in his luggage. His case was that he did not have that knowledge, having been the unwitting dupe of others.

The “fresh evidence”

1. [7]

   The suggested fresh evidence upon which the appellant relied, as summarised by the appellant in his written submissions, was as follows.

2. [8]

   On 28 May 2015, the CDPP forwarded to the appellant’s solicitors a letter in which they advised that the person X was being prosecuted for offences relating to the importation of border controlled drugs and had been committed to stand trial on 30 March 2016. Annexed to the CDPP’s letter, as Annexure A, was a statement setting out the charges against X and details of the offending conduct alleged against him. The appellant summarised the features of the material as follows (the paragraph numbers in the summary are a reference to the paragraphs of Annexure A to the affidavit of Mr Munzenrieder):

3. [9]

   The information in Annexure A also stated that X, Y and Z had each been charged with conspiracy to import a commercial quantity of methamphetamine.

4. [10]

   On 14 July 2015, the Crown forwarded to the appellant’s solicitors a statement of AB dated 10 September 2014. As described in the appellant’s written submissions, that statement disclosed the following:

5. [11]

   On 4 April 2016, the CDPP forwarded to the appellant’s solicitor a summary of facts regarding the charging of two individuals, Masange and Kachunga, with drug importation and money laundering offences. In relation to Masange, the statement disclosed the following:

6. [12]

   In relation to Kachunga, the statement disclosed the following allegations:

7. [13]

   From this material, the appellant relied upon the following as fresh evidence: (i) X’s arrest on 26 June 2014 on drug charges; (ii) information obtained in the course of investigations into X’s activities, including that he routinely used other people to bring drugs into Australia on his behalf; and (iii) AB’s statement to police that he had been manipulated by associates of X into taking the trip to South Africa.

The appellant’s submissions

1. [14]

   The appellant identified the principles to be applied in considering the admissibility and effect of fresh evidence as encapsulated in Gallagher v The Queen [1986] HCA 26; 160 CLR 392 and Mickelberg v The Queen [1989] HCA 35; 167 CLR 259. Citing the judgment of Kirby J in R v Abou-Chabake [2004] NSWCCA 356, the appellant identified the fundamental inquiry as being whether the absence of the evidence from the trial gave rise to a miscarriage of justice.

2. [15]

   The appellant also relied on Abou-Chabake for the proposition that a new trial will be ordered where the following questions can be answered in the affirmative: (1) is the evidence fresh? (2) is the evidence credible or at least capable of belief? (3) if credible, would the evidence, in the context of the evidence at trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused? The third question was alternatively framed as whether, had the evidence been given at trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the accused. The appellant submitted that each of these questions could be answered in the affirmative in the present case.

3. [16]

   The appellant contended that the “fresh evidence” supported his case that X was a drug trafficker, and that it demonstrated that X, and those with whom he worked, engaged in the recruitment and manipulation of young men to serve as couriers for drugs obtained overseas. The appellant submitted that this evidence was relevant, credible and plausible, and supported the inference that the appellant was manipulated by X in accordance with the appellant’s account at his trial. Accordingly, it was submitted that the “fresh evidence”, in the context of the evidence given at trial, is likely to have caused the jury to have entertained a reasonable doubt about the appellant’s guilt.

4. [17]

   X was called as a witness in the third trial for the purposes of cross-examination. In his cross-examination, X maintained that he barely knew the appellant, had not funded the appellant’s trips overseas and had not asked the appellant to bring the bag containing the drugs back from Sao Paolo. X was also cross-examined as to his past criminal conduct, which was limited to convictions for dishonesty and fraud offences. X had no convictions for drug-related matters and he denied involvement in the importation of drugs into Australia.

5. [18]

   The appellant placed some emphasis upon the statement of AB which had been provided to him as part of the information provided in respect of X’s prosecution.

6. [19]

   The appellant also submitted that the “fresh evidence” was of such a compelling nature that, had it been available at trial, far less attention may have been paid to the appellant’s lies about who he had travelled with at various times. Counsel for the appellant expanded on this submission during oral argument:

7. [20]

   The appellant, by his supplementary submissions, contended that the additional evidence concerning Masange and Kachunga suggested that those individuals were “substantially involved in drug trafficking”. It was submitted that had that evidence been available at trial, the jury may have regarded the appellant’s engagement with X, Masange and Kachunga “in a very different way”. The appellant also contended that the additional evidence concerning Masange and Kachunga “adds further detail to the fresh evidence regarding” X. The supplementary submissions characterised the fresh evidence concerning X as detailing “what appeared to be the use of unsuspecting drug mules for the purpose of returning to Australia with drugs”.

The Crown’s submissions

1. [21]

   The Crown referred the Court to the judgment in Stevens v R [2015] NSWCCA 235 as reaffirming the principles governing the admission of fresh evidence on appeal in order to establish a miscarriage of justice warranting a retrial. In particular, the Crown referred to the seven principles summarised by Simpson J (as her Honour then was) in Hay v R [2013] NSWCCA 22 at [18] and reaffirmed in Stevens at [117]. Those principles, which summarise the relevant High Court authorities including Gallagher, are set out below at [26].

2. [22]

   The Crown contended that the “fresh evidence” sought to be adduced by the appellant was not the mere fact that X had now been charged with drug-related offences. Rather, the appellant had identified the “fresh evidence” that he sought to adduce as being that X is alleged to be the head of a criminal drug importation syndicate and has been involved in the recruitment of persons to travel overseas as couriers.

3. [23]

   The Crown submitted that the appellant’s application should be rejected. First, the Crown challenged the appellant’s characterisation of the evidence sought to be adduced as “fresh evidence”. In this regard, the Crown noted that it had disclosed AFP intelligence to the defence prior to trial which expressly referred to the view of the AFP that X was a senior member of a criminal drug importation syndicate. Accordingly, it was submitted that the appellant had not established that the substance or effect of the “fresh evidence” was not known to him prior to the third trial. The Crown also pointed out that the appellant’s legal representatives had had access to information relating to two other drug importations involving the persons, Bukasa and Nabole, travelling to Brazil to courier to Australia bags containing border controlled substances. The Crown pointed out that it was never raised at trial, or put to X, that the same brand and type of bag was used in the Bukasa case as had been carried by the appellant or that there was evidence of X’s involvement in the circumstances of Bukasa and Nabole.

4. [24]

   Secondly, the Crown submitted that the “fresh evidence” in relation to X was not relevant to the primary issue put to the jury at trial. The Crown identified that issue as concerning the appellant’s knowledge of the contents of the “Primicia” bag. In relation to the evidence concerning X, the Crown submitted that evidence of the appellant having been duped or manipulated by X and/or others was irrelevant to, and did not preclude a conclusion of knowledge of the contents of the “Primicia” bag. In this regard, the Crown contended that evidence of being a dupe did not negative knowledge of the contents of the bag, particularly in light of the circumstantial evidence of the appellant’s knowledge, the lies he told and the implausibility of his account. In relation to the evidence concerning Masange and Kachunga, the Crown submitted that evidence as to their being travelling companions of the appellant or X could not rationally bear on the question of the appellant’s knowledge of the contents of the “Primicia” bag.

5. [25]

   Thirdly, the Crown submitted that the predictive assessment required by Gallagher, namely, whether the fresh evidence, in the context of the evidence given at trial, would have been likely to have caused the jury to have entertained a reasonable doubt as to the guilt of the accused was not satisfied. The Crown also submitted that the Court should reject the argument that the evidence sought to be adduced would have resulted in less attention being paid to the appellant’s lies. The Crown submitted that the appellant’s lies in relation to his travel companions were not the only basis on which the jury was entitled to reject the appellant’s credibility. The Crown contended that there were a number of aspects of the appellant’s case which were implausible or inconsistent with objective evidence which pointed towards the appellant’s guilt. In this regard, the Crown pointed to the following evidence (this summary being taken from the Crown’s submissions which were fully cross-referenced to the transcript):

The relevant principles

1. [26]

   It is convenient to set out the principles that govern an application for the admission of fresh evidence on an appeal in order to establish a miscarriage of justice warranting a retrial. These principles were reaffirmed by this Court in Stevens at [117], as follows:

The issues on the appeal

1. [27]

   The appellant did not contend that this was a case in which there was evidence of such cogency that his conviction should be quashed and his discharge ordered. Rather, the appellant accepted that if the appeal was allowed, the appropriate relief was an order quashing his conviction and directing a new trial. Accordingly, the relevant issues can appropriately be framed in terms of the three inquiries identified by the sixth principle summarised in Stevens set out above. However, it must be acknowledged that, at all times, the overarching inquiry is whether there has been a miscarriage of justice.

Is the evidence “fresh” or new?

1. [28]

   It is first necessary to determine whether the evidence sought to be adduced by the appellant can appropriately be characterised as “fresh evidence”. As the authorities above make clear, “fresh evidence” is evidence not available to the accused at the time of the trial, actually or constructively. Latitude is to be afforded to the appellant in determining what evidence could have been available at trial by the exercise of due diligence. It is necessary in determining whether the evidence sought to be adduced is “fresh evidence” to pay close attention to the course of the trial and the evidence available at the trial.

2. [29]

   Prior to the appellant’s second trial, the CDPP provided to the appellant the brief of evidence in relation to Tresor Bukasa who had been arrested in Melbourne for importing a commercial quantity of a border controlled drug, namely, cocaine, in the same brand and style of the carry-on bag used by the appellant. Although the CDPP took the view that the alleged importation by Bukasa was not admissible in the appellant’s trial, the information available to it at that time established that there were a number of links between the two men: both had immigrated to Australia from the Democratic Republic of the Congo; both had checked in and travelled on the same flight and had been, seated in adjacent rows, to South Africa and Colombia; both had sent and received money via the same associates using Western Union money transfers; and both had imported cocaine concealed in the same brand and style of “Primicia” carry-on bag, packaged in the same way using a particular form of cardboard and packing tape.

3. [30]

   The appellant gave evidence in the second trial of his relationship with X. The Crown had not previously been aware of X or another person Gilbert Kachunga, or the appellant’s connection with them. According to the evidence the appellant gave at this trial, the appellant had travelled to South Africa and then Colombia with X on a holiday in July 2011 (the July 2011 trip); between August and September 2011, at X’s request, the appellant travelled to the United States, to collect documents relating to a car importation business (the August-September 2011 trip); between October and December 2011, again at the request of X, the appellant travelled to South Africa and then Brazil, where he was given the “Primicia” carry-on bag purportedly as a sample of merchandise to be sold in Australia (the October-December 2011 trip). On the appellant’s evidence, unknown to him, the cocaine was concealed inside that bag.

4. [31]

   Having regard to the appellant’s evidence, investigations were carried out by the CDPP which revealed, relevantly: X was, at that time, overseas; and that on the first leg of the July 2011 trip, the appellant had travelled with Tresor Bukasa and Artyre Gbenima, believed to be the appellant’s brother. It was also established that there was a connection between Gbenima and Masange. This information was provided to the appellant’s legal representatives on 16 November 2012.

5. [32]

   Following the second trial and before the third, the CDPP carried out further investigations in respect of the persons X, Gilbert (subsequently identified as Gilbert Kachunga), Gbenima, Masange and Bukasa. As a result of those investigations, the CDPP obtained: information as to the travel movements of the five persons mentioned, including information that Masange had also been on the flight on the first leg of the July 2011 trip; statements from X, Kachunga, Gbenima and Masange; Kachunga’s passenger cards; a download of data from Kachunga’s phone and his call charge records; particulars of X’s convictions, which were principally for fraud-related charges; records of certain international money transfers associated with X; and advice as to intelligence relating to X, which included that X was suspected of being a senior member of a drug importation syndicate and was involved in recruiting persons of African descent to import narcotics into Australia. All of this information was provided to the appellant.

6. [33]

   The CDPP also advised the appellant’s legal representatives that it proposed to call X and Kachunga in the trial. Advice and material additional to that described above was disclosed to the appellant’s legal representatives as and when it became available. This included evidence of a connection between X and a person named Hamado Nabole, who had been charged with importing a marketable quantity of cocaine from Brazil.

7. [34]

   On 29 May 2013, on the application of the appellant and with the consent of the Crown, a Basha inquiry was held at which X and Kachunga gave evidence. After that inquiry, the CDPP determined not to call X and Kachunga as Crown witnesses in the appellant’s trial, but advised the appellant’s legal representatives they would be available for cross-examination if subpoenaed.

8. [35]

   The evidence that was called at the third trial included, relevantly, documentation as to the travel movements of X, Gbenima and Masange which disclosed that the appellant had travelled to Colombia with them on the July 2011 trip. This was contrary to the appellant’s evidence at his second trial that he had only travelled to Colombia with X.

9. [36]

   X and Kachunga were called for the purposes of cross-examination. However, the appellant did not cross-examine either of them in relation to the prosecutions of Bukasa and Nabole, nor in respect of any drug involvement of X and Kachunga or suspicion thereof in accordance with the Australian Federal Police’s intelligence of which they had been advised. As summarised in the Crown’s submissions, the following observations may be made of X’s cross-examination:

10. [37]

    In the third trial, the appellant also adduced by way of tendency evidence a summary relating to X’s criminal record: see Exhibit 1. The tendency statement contained a statement of the various fraud related charges of which X had been convicted together with an outline of the factual circumstances respecting each matter. Although some of the matters related to travel arrangements X had made using false identities and the fraudulent use of other person’s credit cards, none of the convictions involved travel to Africa or South America. Nor were the persons connected with the conduct relating to those convictions involved in or connected to the fraud charges.

11. [38]

    Subsequent to the conviction of the appellant at the third trial, X was charged in Melbourne with drug importation. The offences were alleged to have been committed between about 28 November 2013 and 31 May 2014. The CDPP obtained information in respect of X’s prosecution and informed the appellant’s legal representatives of this and provided them with a copy of the statement of facts in that prosecution. The CDPP also provided the witness statement of AB which formed part of the brief of evidence in X’s prosecution and subsequently a transcript of the committal hearing of X, at which AB gave evidence.

12. [39]

    On 1 April 2016, the CDPP ascertained that Kachunga and Masange were being prosecuted for drug importation offences through mail consignments. Those offences were alleged to have been committed between about 1 October 2013 and 30 May 2014. The CDPP’s most current information was that Kachunga and Masange intended to plead guilty to the charges and that X was currently subject of a joint trial with Y and Z.

13. [40]

    In our opinion, the only evidence that was “fresh” in the present case was that X, Kachunga and Masange have all been charged with drug offences, each alleged to have been committed after the appellant’s conviction; the material in AB’s statement; and the evidence of X’s telephone conversations with “Mike”. The charge against X related to the importation of drugs hidden in furniture sent from Pakistan. The charges against Kachunga and Masange relate to alleged drug importations through the mail.

14. [41]

    None of the offences alleged against X, Kachunga or Masange have a discernible connection with the offence committed by the appellant. Even if the conduct involved in the alleged offences had occurred before the applicant’s offence, it would not have been admissible as tendency evidence: IMM v The Queen [2016] HCA 14, and the appellant did not contend that the evidence would now be admissible as tendency evidence.

15. [42]

    Indeed, it is also difficult to see that the evidence that X, Kachunga and Masange had been charged with drug offences would be admissible at all. The fact that a person has been charged with an offence is proof of that fact only. Evidence of a charge could not rationally affect the assessment of the probability of the existence of a fact in issue in the appellant’s trial: the Evidence Act 1995 (NSW), s 55. Further, independent proof of the underlying conduct relating to the charges against each of those three persons, such as the interception of the drugs in the furniture shipped from Pakistan or in the mail, would not be relevant evidence in respect of the charge of which the appellant was convicted.

16. [43]

    So far as the charge against X might provide a basis for cross-examination, for reasons that have already been given, that cross-examination would have to extend beyond the mere fact of the charge. It would, at the least, have to encompass cross-examination of X as to whether he was engaged in the importation of the drugs the subject of the charge against the appellant. In particular, the questioning would have had to extend to an assertion that X duped the appellant into bringing a bag into Australia that contained drugs.

17. [44]

    X was cross-examined about those matters at the third trial. His denials are recorded in the summary of the evidence set out above, at [36]. The only development is that X has since been charged with an importation offence, albeit one which has no connection to the charge against the appellant.

18. [45]

    Even if, contrary to our view, the evidence of the charge against X or, more particularly, of conduct relating to the charge was relevant and therefore admissible, the question arises as to the likely impact of that evidence in the context of the trial. That task is essentially, a predictive or evaluative assessment of the likely impact of the evidence, had it been available at trial.

19. [46]

    We have already referred to these principles. However, the observations of Brennan J in Gallagher, at 409-410, who framed the relevant inquiry as follows, are particularly pertinent:

20. [47]

    In the present case, had the evidence of the charge, or the evidence of conduct of X that related to the charge, been admitted, it would have demonstrated to the jury that there was evidence that may link X, Y and Z with drug related activities, but which was unrelated to the drug charge of which the appellant was convicted. It is to be remembered that the appellant did not give evidence at his third trial, however, his evidence at the second trial was played to the jury at the third trial and other evidence established that contrary to the denials of both the appellant and X, they had travelled together to Buenos Aires and Bogota. There was also the evidence that the appellant had travelled with Kachunga and Masange on the 2011 trip, contrary to the appellant’s denials. In this context, it is difficult to see that the evidence sought to be adduced would have been likely “to remove the certainty of the prisoner’s guilt”. If anything, it was more likely to confirm that there was a relationship between the appellant and X, and with Kachunga and Masange, which concerned drugs and, therefore, at least possibly reinforce the jury’s assessment that the appellant had knowledge of the contents of the bag.

21. [48]

    It is necessary to give separate consideration to AB’s statement. AB’s statement was that he was given a trip to South Africa on the pretext of picking up passports; that later, upon his return, a person whom the authorities believe was X, had been party, with Y and Z, to an arrangement where AB was offered money, in effect to buy his silence about the trip; that the real purpose of the trip was to obtain drugs, an inference available from AB’s statement that a “a bag wrapped in plastic” was delivered to Z at the hotel; and that he was offered another trip to go to China, again “to collect passports”.

22. [49]

    If that evidence was accepted by a jury, it would demonstrate that, on other occasions, X had been part of group of persons who arranged for others to travel overseas, including to China, for the purposes of collecting drugs to import into Australia.

23. [50]

    However, before the third trial, the appellant had been provided with advice that the AFP had intelligence that indicated that X was involved in a syndicate which recruited persons of African descent to act as couriers for the purposes of drug importation. The appellant did not cross-examine X as to any such involvement. The appellant contended that the material in AB’s statement was supportive of his account. However, the account of AB, particularly in relation to his quickly formed fears and suspicions, may in fact be adverse to the appellant’s case of lack of knowledge, in circumstances where his relationship with X was more established than was AB’s, and where the appellant had lied about his trips abroad.

24. [51]

    Although AB’s evidence would have provided much stronger ground for cross-examination of X, we are not satisfied that it would have been likely to remove the certainty of the appellant’s guilt, when the question in issue was the appellant’s knowledge of the contents of the bag. As we have said, the obverse may have been more likely.

25. [52]

    There was one piece of evidence which did indicate that X may have had an involvement with the supply of drugs from Brazil, namely, telephone intercepts which recorded X speaking with a man called “Mike” in Brazil in March and May 2014. It was considered that the conversations related to drugs.

26. [53]

    The appellant’s evidence at his second trial was that he had been given the bag containing the drugs by a man named “Mike”. The appellant submitted that evidence of the telephone conversation had been before the jury, it would have added credibility to the appellant’s account which had been damaged by the lies the appellant told in his evidence.

27. [54]

    In our opinion, this evidence, had it been available at trial, would have confirmed what the jury had been told, that the appellant had been given the bag by “Mike”. As it was not in dispute that the bag contained drugs, it is likely that the jury would have inferred that “Mike” was, in some way, involved in or connected with the drugs in the bag.

28. [55]

    We acknowledge that evidence of the telephone conversations may have brought X “closer” to the drug importation of which the appellant was convicted. However, we do not accept that it is likely that a different verdict would have resulted had this evidence been before the jury at the appellant’s trial. In coming to this conclusion, we have taken into account that the appellant did not directly cross-examine X about a person called “Mike”. The only relevant direct question asked of X in cross-examination was:

29. [56]

    Given his evidence at the second trial and what was disclosed to him before the third trial, it is inconceivable that the appellant did not know, or have a sufficient basis upon which to explore X’s relationship with “Mike”, X’s knowledge of the cocaine in the bag given to him by Mike, or his involvement with the drug syndicate which had recruited others to import drugs into Australia, in the course of cross-examination.

30. [57]

    Accordingly, we consider that the appellant has failed to establish that the fresh or new evidence that he seeks to adduce was such that he should be entitled to an order for a new trial.

31. [58]

    If follows, therefore, that the order of the Court is that the appeal is dismissed.