YONKWA-DINGOM v R [2019] NZCA 194

YONKWA-DINGOM v R [2019] NZCA 194 [31 May 2019]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA168/2019[2019] NZCA 194BETWEEN ALEXANDER STEEVE YELENGWEYONKWA-DINGOMAppellantAND THE QUEENRespondentHearing: 20 May 2019Court: Stevens, Duffy and Dobson JJCounsel: A B Fairley for AppellantA J Ewing for RespondentJudgment: 31 May 2019 at 11.30 amReissued: 1 April 2022JUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublicly available database until final disposition of trial. Publication in lawreport or law digest permitted.__________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] Mr Yonkwa-Dingom is facing trial on a charge of importing approximately24 kg of cocaine into New Zealand. The Crown case will be that he conspired withothers to carry out the importation as part of a larger conspiracy involving anotherimportation of cocaine into Australia.[2] The Crown has given notice of its intention to rely on the co-conspirators' rule,now found in s 22A of the Evidence Act 2006 (the Act), to adduce evidence ofcommunications between alleged co-conspirators (some includingMr Yonkwa-Dingom), the content of which would otherwise be hearsay because thoseresponsible for the communications will not be called as witnesses.[3] On 13 March 2019, Lang J delivered judgment upholding the admissibility ofthe communications in issue.1 Mr Yonkwa-Dingom requires leave to pursuethe appeal pre-trial.2 The Crown did not oppose leave and it is an appropriate case inwhich to grant it. We do so.[4] The scope and content of the communications between allegedco-conspirators, and evidence of their activities providing context for thosecommunications, has progressed materially since the argument in the High Court inMarch 2019. The Crown submissions filed shortly before the hearing of the appealdescribed these wider circumstances. At the outset of the hearing the Court clarifiedwith counsel whether the appeal should be confined to argument on the state ofthe Crown's explanation for its case in March 2019, or whether the application ofs 22A of the Act ought to be assessed in light of the current outline of the relevantaspects of the Crown's case.[5] Mr Fairley was not taken by surprise by the broader analysis contained inthe Crown's submissions. He agreed that it was preferable for the challenge to theinvocation of s 22A to be assessed on the current outline of the Crown case, subject to1 R v Yonkwa-Dingom [2019] NZHC 428.2 Criminal Procedure Act 2011, s 217.reserving his client's position on the third limb of s 22A of the Act that had not, in anyevent, been determined by Lang J. That approach was entirely appropriate.[6] Section 22A provides:22A Admissibility of hearsay statement against defendantIn a criminal proceeding, a hearsay statement is admissible against adefendant if—(a) there is reasonable evidence of a conspiracy or jointenterprise; and(b) there is reasonable evidence that the defendant was a memberof the conspiracy or joint enterprise; and(c) the hearsay statement was made in furtherance of theconspiracy or joint enterprise.[7] The element in s 22A(c) can, in cases like the present, more conveniently bedeferred for consideration by the trial Judge of individual statements in light of theremainder of the evidence. In any event, the judgment under appeal ruled thestatements admissible without determining that aspect and it was proper for Mr Fairleyto reserve that issue for later consideration.The alleged conspiracy[8] The Crown case will be that the conspirators planned to import twoconsignments of approximately 24 kg and 25 kg each of cocaine into Australia.The consignments were to be transported by passengers on separate cruise ships onvoyages from the United States via South America, French Polynesia andNew Zealand, to Australia. The first consignment was on a cruise ship, the Astor,which arrived in Sydney on 30 November 2017. Twenty-five kg of cocaine was seizedand four couriers, including a Ms Kallouch, were arrested. By the date of the firstseizure, a second cruise ship, the Regatta, was on its way to New Zealand. Passengersincluded a French couple, Mr M and Ms G, whom the Crown will allege had custodyof the second consignment of some 24 kg of cocaine.[9] The Crown will invite the inference that after the arrests in Sydney on30 November 2017, Mr M (and potentially others in the conspiracy) changed the planto take the second consignment off the Regatta when it reached Sydney, and insteadarranged to import the cocaine into New Zealand. Its case is that on 4 December 2017,Mr M accessed internet articles about the arrest of the four couriers in Sydney andthen researched articles about jail terms imposed on couriers for importing cocaineinto Australia, as well as searching for information about the port of Paihia and levelof security there.[10] The Regatta spent the day of 5 December 2017 berthed in Paihia. Mr M andMs G left the ship and there is evidence suggesting that they were both wearingbackpacks. The Crown case is that they off-loaded the cocaine during their day inPaihia. During the day, Mr M communicated with others whose code names wereFred09, Scarface and luigi9393. The Crown case is that luigi9393 is Mr Yonkwa-Dingom.[11] Mr M was using an application (app) called "Silent Phone", which can be setto delete the contents of communications after a stipulated period. Because of the useof that app, the contents of some of these communications remain unknown.[12] Retrieved communications from 5 December 2017 from Scarface to Mr Msuggest that Scarface knew that something illicit or dangerous was happening and heor she was arranging payment for it. Scarface requested to be kept informed andrepeatedly told Mr M to "be careful". A communication from Scarface advised that abank transfer had been arranged, referring to the name "Jeromine Campion". TheCrown has evidence of a Western Union bank transfer being received by Ms G on5 December 2017.[13] Leaving Paihia, the Regatta next sailed to Auckland by which timeNew Zealand Customs had obtained a search warrant for Mr M and Ms G's cabin. Thewarrant was executed on 6 December 2017. They were both interviewed, and theirphones were analysed. A search of their cabin revealed no drugs, but it appears that adrug dog "indicated" on a suitcase in their cabin, suggesting the possible previouspresence of substances the dog was trained to identify. Neither of the couple werearrested and they both left New Zealand the next day.[14] As to Mr Yonkwa-Dingom's involvement in these activities, the Crown casewill be that he flew from French Polynesia to Australia on 9 November 2017.After arriving in Australia, he received two payments by Western Union transfertotalling approximately $15,000. He then flew to New Zealand from Sydney on3 December 2017, which was after the couriers in relation to the consignment onthe Astor had been arrested, but before Mr M and Ms G had arrived in New Zealandon the Regatta.[15] Mr Yonkwa-Dingom booked accommodation in Paihia from 4 to6 December 2017, taking a room in a hotel one km from the Waitangi wharf wherethe Regatta would dock. The Crown case will be that he told staff at the hotel he didnot want anyone to service his room. Although his initial booking was just for thosethree days, he remained in residence there until his arrest on 20 December 2017,incurring a cost of more than $4,000.[16] In addition to the hotel, Mr Yonkwa-Dingom also booked a room at a PaihiaYHA hostel, using a false name and paying for the reservation in cash.The consignment of some 24 kg of cocaine was found in that room on 20 December2017. He pleaded guilty to the charge of possession for supply of that consignment,thereby accepting that he knew what the package contained.[17] A subsequent electronic search of Mr Yonkwa-Dingom's cell phone revealedphotographs of blocks of white powder that had been deleted but then electronicallyretrieved, which had been taken at the latest in August 2017.[18] On the morning of his arrest, Mr Yonkwa-Dingom had uplifted a little less than$4,000, which had been transferred via Western Union from France. Western Uniontransfers to him appear to link him to others alleged to be involved in the conspiracy.He had received funds from the same agent as Mr M, Ms G and one of the Australiancouriers, a Ms Deirolle. One of the payments Mr Yonkwa-Dingom had receivedwhilst in Australia came from Jeromine Campion, also sourced in France, which wasthe same name as the person that had paid Ms G on the day of the importation at Paihia.[19] Mr Yonkwa-Dingom's cell phone revealed communications with othersalleged to be members of the conspiracy. His phone had the "Silent Phone" app on it,with the user name luigi9393, identifying his phone as the recipient of Mr M'smessaging on 4 and 5 December 2017. Fred09 was also a contact onMr Yonkwa-Dingom's Silent Phone app. Although Mr Yonkwa-Dingom providedpasswords for his laptop and cell phone, he refused, when legally required to do so, toprovide a password for the "Silent Phone" app.[20] The Crown case will be that there are sufficient similarities in themodus operandi, the personnel identified as being involved, and the timing, to treatboth consignments as part of a single conspiracy. In each case, the cocaine waspackaged in clear plastic-wrapped one kg bricks, and was accompanied by packets of"wet wipes".[21] Fred09 provided instructions to one of the four couriers of the Australianconsignment, Ms Kallouch, on where to deliver the cocaine. A second of thosecouriers was noted as having travelled on the Eurostar with Mr M in early October2017. Mr M's cell phone contained a photo of the passports of two of the couriersinvolved in the Australian consignment, Ms Kallouch and Mr Carpentier. All three ofthem had applied for Australian visas using the same email address.[22] The third of the couriers involved in the Australian consignment, Ms Deirolle,had Ms G's name among her cell phone contacts. The Crown case will be that thosetwo women met up in Tahiti when both ships were en route to Australasia.Ms Deirolle, Ms G and Mr M all received Western Union money transfers using thesame code for the sender's agent.The law[23] The legal principles are not in dispute. The first of the relevant requirementsin s 22A of the Act is that there be reasonable evidence of a conspiracy or jointenterprise.3 The standard required is less stringent than on the balance of probabilitiesand connotes evidence which of itself would not sustain a verdict of guilt, but which3 Evidence Act 2006, s 22A(a).is of such a nature that the Judge considers it safe to admit the evidence of aco-conspirator.4[24] In making out reasonable evidence of a conspiracy, the Court is to exclude thecontent of communications involving co-conspirators that would otherwise be hearsay.However, it is also to be borne in mind that communications involving allegedco-conspirators will often have relevance for the fact that they occurred, withoutthe Crown seeking to place reliance on the truth of statements made by a non-witnesswhich would be vulnerable to exclusion as hearsay.[25] In the present case, the Crown may wish to refer to the existence of the networkof communications between alleged co-conspirators to support the proposition thatthey were relevantly in communication with each other at times important to theconduct of the conspiracy. That does not require any focus on the content of thosecommunications.5Analysis[26] We are readily satisfied that there is reasonable evidence of the existence of aconspiracy involving the importation into Australia and New Zealand of the twoconsignments of approximately 24 kg of cocaine. There is a reasonable basis forthe Crown to advance its case on the basis that, after the arrest of the four couriers inSydney, the original plans were changed. As a result, the second consignment wasoff-loaded at Paihia because of the conspirators' concerns that interception of the firstconsignment in Sydney required them to alter the previous plan for all the cocaine tobe imported into Australia. Mr M and Fred09 are sufficiently linked to the handlingof both consignments, with the prospect of involvement by "Scarface" also beingsufficiently extensive to identify that person as a co-conspirator.[27] The second of the requirements under s 22A is whether there is reasonableevidence that Mr Yonkwa-Dingom was a member of that conspiracy or jointenterprise. We are also satisfied that this proposition is made out to the required4 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [12]; and Kayrouz v R [2014] NZCA 139at [22].5 Compare Qiu v R [2007] NZSC 51, [2008] 1 NZLR 1 at [14], a pre-Evidence Act 2006 decision.standard. Mr Yonkwa-Dingom travelled to Australia before the arrival there of thefirst consignment of cocaine and was in contact with others who can reasonably beattributed with involvement in the importation of the first consignment. Once the firstconsignment was intercepted, Mr Yonkwa-Dingom came to New Zealand and wasthereafter in contact with Mr M and others who have not been identified as being inAustralia, but who were part of the joint enterprise at least by their connections withremittances of money from France.[28] It seems highly unlikely that Mr Yonkwa-Dingom came into possession of the24 kg of cocaine found in the room he was hiring at the Paihia YHA hostel other thanfrom Mr M and Ms G. It was packed in the same way as the consignment interceptedearlier in Sydney. Mr M and Ms G had significant connections to those allegedlyinvolved in the Sydney importation, and Mr Yonkwa-Dingom went to Paihia in thecircumstances described when their cruise ship was there.[29] Accordingly, we are satisfied that the first two requirements of s 22A are madeout in respect of the evidence the Crown proposes to adduce of the activities andcommunications of alleged co-conspirators in the importation of both the Australianand the New Zealand consignments of cocaine.[30] We note that the prospect of a challenge to the admissibility of any particularhearsay statement on the ground that it was not made in furtherance of the conspiracy(as required under s 22A(c)) was reserved by Lang J for consideration bythe trial judge.6 To the extent that admissibility has been contested in this appeal onthe two grounds argued before us, we dismiss the appeal.Result[31] The application for leave to appeal is granted.[32] The appeal is dismissed.6 R v Yonkwa-Dingom, above n 1, at [14].[33] In order to protect the appellant's fair trial rights, we make an order prohibitingpublication of the judgment and any part of the proceedings (including the result) innews media or on the internet or other publicly available database until finaldisposition of trial. Publication in a law report or law digest is permitted.Solicitors:Thomson Wilson, Whangarei for AppellantCrown Law Office, Wellington for Respondent