Allen v The Queen - [2017] NZCA 392

IN THE COURT OF APPEAL OF NEW ZEALAND

CA141/2016
[2017] NZCA 392

BETWEEN	GEOFFREY MILTON ALLEN Appellant
AND	THE QUEEN Respondent

Hearing:	31 July 2017
Court:	Cooper, Brewer and Peters JJ
Counsel:	T Cooper for Appellant Y V Yelavich for Respondent
Judgment:	6 September 2017 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

At the conclusion of his trial before Gilbert J and a jury on 27 November 2015 the appellant, Geoffrey Allen, was convicted of 38 charges, most of which alleged offending under the Misuse of Drugs Act 1975.
Among the charges on which convictions were entered were 14 of supplying methamphetamine and 13 of manufacturing methamphetamine. He was acquitted of one representative charge of manufacturing methamphetamine, two particularised charges of manufacturing methamphetamine, one representative charge of supplying methamphetamine, and two particularised charges of supplying methamphetamine.
On 15 March 2016 Mr Allen was sentenced to 19 years’ imprisonment.[1] Gilbert J ordered that he serve a minimum term of 10 years.
[1]R v Allen [2016] NZHC 445.
Mr Allen now appeals against the convictions alleging there was a miscarriage of justice on two grounds. He contends first that the Judge erred by not discharging the jury after an intercepted communication was played to the jury from which it is said the jury could have inferred Mr Allen had been in jail. The second ground is that the Judge again erred in not discharging the jury after the foreperson and three other jurors reported that they had seen Mr Allen outside smoking drugs with two co-defendants.

Background

The Crown alleged that Mr Allen was the head of a methamphetamine manufacturing and distribution operation. It was said that on various occasions from 2011 he was actively involved in the manufacture and/or supply of methamphetamine from various addresses, including his home address and a storage unit. Evidence relied on by the Crown included: items that were seized from his address and van and then forensically analysed; intercepted text messages, phone calls and polling data; and photographic evidence obtained as a result of surveillance. One strand of the Crown’s case alleged that Mr Allen had been involved in the supply and distribution of methamphetamine at storage facilities, where he met women and exchanged methamphetamine in return for sex.
One of the representative charges alleging manufacture of methamphetamine claimed that the appellant had manufactured methamphetamine in the garage and laundry of his home in May 2014. The Crown claimed that the readings of methamphetamine and pseudoephedrine obtained by testing were consistent with the manufacture of methamphetamine. The defence on that charge was that the high readings of methamphetamine could be explained by personal use. The Crown called evidence from an ESR scientist, Ms Mayo, to the effect that any such personal use would need to have reached implausible levels (15,000 smokes over 930 days, the period of the charge, which equates to an average of more than 15 per…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v The Queen

Details

AGLC: Allen v The Queen [2017] NZCA 392
Case: [2017] NZCA 392
Decision Date: 6 September 2017 at 11.30 am

CaseChat Overview and Summary

Geoffrey Allen appealed against his conviction on 38 charges of drug offending, alleging a miscarriage of justice had occurred. He was convicted of 14 counts of supplying and 13 counts of manufacturing methamphetamine. He was acquitted on six counts of manufacturing and supplying. The appeal was dismissed by the Court of Appeal. The appellant argued the trial judge should have discharged the jury after an intercepted communication was played that implied he had been in jail. The court found there was no real danger of a miscarriage of justice occurring as a result of the jury hearing this "throwaway and inconsequential comment." The second ground of appeal was based on the foreperson and three other jurors reporting to the trial judge that they had seen the appellant outside smoking drugs with two co-defendants. The appellant’s counsel argued the trial judge should have discharged the jury. The trial judge gave specific and firm directions to the jury that what they may have witnessed was completely irrelevant to the trial. The court found the trial judge gave clear instructions to the jury about how they were to regard the incident and explained the reasons for the direction with a clarity that justified confidence the jury would have complied with the instructions. The appeal was dismissed.

Orders