Beckham v R
[2015] NZSC 98
•7 July 2015
| For a Court ready (fee required) version please follow this link |
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 18/2013 [2015] NZSC 98 |
| BETWEEN | MAX JOHN BECKHAM |
| AND | THE QUEEN |
| Hearing: | 3–4 March 2015 |
Court: | Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ |
Counsel: | S J Mount, A F Pilditch and A H H Choi for Appellant |
Judgment: | 7 July 2015 |
JUDGMENT OF THE COURT
AThe application for leave to appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS
(Given by O’Regan J)
| Table of Contents | |
| Para No | |
| Appeal and application for leave | [1] |
| Factual background | [9] |
| Allegations of breach of privilege dealt with by High Court and Court of Appeal | [45] |
| New allegations of breach of privilege | [48] |
| (a) Alleged breaches of solicitor/client privilege | [52] |
| (b) Alleged breaches of litigation privilege | [63] |
| Conclusion – new allegations of breaches of privilege | [100] |
| Evaluation of the facts: five propositions | [101] |
| Proposition 1 | [102] |
| Proposition 2 | [107] |
| Proposition 3 | [111] |
| Proposition 4 | [116] |
| Proposition 5 | [119] |
| Conclusion on propositions relating to the facts | [123] |
| Alleged breaches of the Bill of Rights Act: two propositions | [124] |
| Proposition 6 | [125] |
| Proposition 7 | [131] |
| Remedies: two propositions | [148] |
| Proposition 8 | [149] |
| Proposition 9 | [151] |
| Result | [179] |
Appeal and application for leave
The appellant, Mr Beckham, appeals against a decision of the Court of Appeal in which his appeal against conviction for serious drug offending and money laundering was dismissed.[1] A Crown appeal against sentence was allowed. His sentence was increased to a term of imprisonment of 18 years with a minimum period of imprisonment of nine years.
[1]Beckham v R [2012] NZCA 603, [2013] 1 NZLR 613 (Stevens, Venning and Dobson JJ) [Beckham (CA)].
Mr Beckham sought leave to appeal to this Court on the basis that the Court of Appeal had wrongly stated and wrongly applied the test for sentence reduction as a remedy for police misconduct amounting to a breach of the New Zealand Bill of Rights Act 1990. Leave to appeal was granted.[2] The approved ground was:
Should the appellant have received a reduction in his sentence for the breach of his rights under the New Zealand Bill of Rights Act 1990?
[2]Beckham v R [2013] NZSC 70 [Beckham (SC Leave)].
The breach of the Bill of Rights Act on which the appeal was founded involved actions taken by the police that meant the police obtained access to recordings of calls made by Mr Beckham to his trial lawyer, Mr Murray Gibson, and in one instance, a call made by Mr Beckham to his son, Gary Beckham, who then handed the phone to a property lawyer acting for Mr Beckham, Mr Rick Palmer. The focus of the appeal was therefore on breaches of legal advice privilege under s 54 Evidence Act 2006 (“solicitor/client privilege”).[3] We will explain the nature of the allegations of breach of solicitor/client privilege later.
[3]Evidence Act 2006, s 54.
Shortly before the scheduled hearing date for the appeal on 1 April 2014, counsel for Mr Beckham, Mr Mount, filed a memorandum seeking leave to file further submissions regarding allegations of additional breaches of privilege by the police. These allegations had not been made in the High Court or Court of Appeal. Mr Mount said these breaches had only come to light when he received a schedule prepared by police officers who had listened to recordings of calls made by Mr Beckham from prison to members of his family and others. This schedule recorded discussions during recorded telephone calls in which Mr Beckham had discussed trial strategy, actual and possible defence witnesses and possible defence evidence. The principal focus of the new submissions was, therefore, litigation privilege, rather than solicitor/client privilege.
At the hearing on 1 April 2014, the Court granted leave to Mr Beckham to file further written submissions dealing with potential breaches of litigation privilege and set a new timetable for submissions. The Court then adjourned the hearing. On the same day, the Court also ordered the Crown to provide any further schedule prepared by the police in respect of recordings of Mr Beckham’s telephone calls from prison and to provide details of the police officers to whom any such schedule was provided or shown. Subsequently, the Court granted extensions of time for the filing of further submissions.
The police provided a further schedule to Mr Beckham’s counsel in compliance with that order. That led to Mr Beckham filing a further application for leave to appeal. He sought leave to appeal against the decision of the Court of Appeal to dismiss his appeal against conviction. In effect, this intended appeal challenged the decisions made in the High Court on two occasions to refuse to stay the proceedings on the basis that the police action leading to breaches of the Bill of Rights Act would have made the trial an abuse of process. However, the argument intended to be pursued in this Court relied not just on the breach of solicitor/client privilege but on the new allegations of breaches of litigation privilege.
The result of all this is that, at the hearing on 3 and 4 March 2015, the Court dealt with the appeal against sentence for which leave had been granted and the application for leave to appeal against conviction. The Court heard full argument on the issues relating to the proposed appeal against conviction.
Mr Mount advanced the case for Mr Beckham on the basis of nine propositions. We will address each of those propositions in turn. In order to give context to these propositions, it is necessary to set out the factual background in some detail. We will also set out and evaluate the new allegations of breaches of privilege before turning to Mr Mount’s nine propositions.
Factual background
It is convenient to set out the factual background in the form of a chronology.
22 October 2008
Mr Beckham was arrested on 22 October 2008 and charged with a number of serious drug offences. He was remanded in custody. The arrest followed the termination of a police operation known as “Operation Jivaro”. The officer in charge of Operation Jivaro was Detective Sergeant Schmid.
10 August 2009
Following receipt by the police of information to the effect that Mr Beckham was planning to escape from custody and had made threats against Detective Sergeant Schmid, the police commenced a new investigation on 10 August 2009. The investigation was undertaken by the Special Investigations Group (SIG) and was led by Detective Sergeant Lunjevich. This operation was called “Operation Valley”. The investigation was undertaken by different officers from those involved in Operation Jivaro.[4]
[4]The High Court Judge, Andrews J, found that Operation Valley “was entirely independent of, and quarantined from, the drugs squad’s Operation Jivaro investigation”: R v Beckham HC Auckland CRI-2008-004-29112, 4 February 2011 [Beckham (HC) No 1] at [82](e). The Court of Appeal described the SIG unit as “operationally distinct and separate from the police unit responsible for the prosecution of the charges arising from Operation Jivaro”: Beckham (CA), above n 1, at [9].
During the period Mr Beckham was on remand, he made calls on a regular basis from prison to nine numbers. These calls were made from public pay telephones in the prison, which are known by prisoners to be monitored. In particular, there is a notice to this effect prominently displayed above the telephone and there is a recorded message at the outset of each call advising that the call will be monitored. Prisoners are given a PIN number to identify the maker of the call. The monitoring system operated by the Department of Corrections in prisons requires that the numbers to which calls are made from the public phone must be approved by Corrections. In Mr Beckham’s case, nine numbers were approved, including Mr Gibson’s number. A recording of calls made from the public phones is stored as a digital file in the Corrections computer system, and in addition a file recording the date, time and the number to which the call was made is recorded. Provision is made for “exempt” numbers for calls to counsel and others attracting exempt status under s 114 Corrections Act 2004. Such calls are not recorded.
In the case of Mr Beckham, the telephone number of his lawyer had not been noted as an exempt number, so, contrary to normal practice, calls made by Mr Beckham from the public phone to Mr Gibson were recorded.
Calls to counsel may also be made by prisoners from an office telephone which is not monitored. Accordingly, no calls from the office telephone are recorded. However, access to this phone is not always available. A log is made of calls from the office telephone.
11 August 2009
On 11 August 2009, the New Zealand Customs Service issued a requisition to Corrections requiring it to produce Mr Beckham’s call data for the period from 3 to 11 August 2009. This was made under s 161 of the Customs and Excise Act 1996, which empowers the chief executive of Customs to require a person to produce for investigation documents or records considered necessary or relevant to, among other things, an investigation under the Customs and Excise Act. Calls to Mr Gibson were not excluded from the requisition or from the call data provided by Corrections to Customs. This was contrary to the provision in s 162 of the Customs and Excise Act that communications between a lawyer and client for the purpose of obtaining legal advice are not to be disclosed under s 161.
17 August 2009
Detective Sergeant Lunjevich obtained a search warrant on 17 August 2009 from the District Court at Auckland in respect of, among other things, call data for Mr Beckham’s calls from the public (monitored) phone in the prison in which Mr Beckham was being held on remand. Before applying for the warrant, Detective Sergeant Lunjevich had obtained from Corrections an information report which listed the approved telephone numbers. Detective Sergeant Lunjevich had made inquiries about these numbers and was aware that one of the numbers was Mr Gibson’s number. Corrections had apparently been unaware of this and Detective Sergeant Lunjevich did not advise Corrections of this fact. Despite this knowledge, Detective Sergeant Lunjevich included all of the approved numbers including Mr Gibson’s number in the application for a search warrant and he did not disclose to the issuing officer that the warrant purported to authorise seizure of recordings of calls made by Mr Beckham from the public phone to his counsel.[5] Nor did the warrant make any reference to the possibility of privileged calls being intercepted or suggest any process for dealing with privileged calls.
[5]Of the nine numbers referred to in the application, four identified the person associated with the number. This was not the case in relation to Mr Gibson’s number.
Counsel for the Crown accepted that Corrections should not have retained the recordings of Mr Beckham’s calls to Mr Gibson and that the application for a search warrant should have set out measures to preserve legal professional privilege in those calls. It was also accepted that the application ought to have expressly addressed the question of calls attracting privilege and set out a process for dealing with them.
In his evidence in the High Court, Detective Sergeant Lunjevich said that he assumed that Mr Beckham’s calls to Mr Gibson were likely to be privileged and that he did not intend that any such calls would be listened to. However, he said that the calls would be “put aside” in case it became necessary to listen to the content of the calls, in which case he would have sought legal advice from the police management and legal section. He was aware that the Corrections’ monitoring system retained recordings of calls for only 180 days, and he considered it was necessary to seize copies of the recordings to preserve them in case it became necessary to consider listening to them at a future date.
18 August 2009
Police officers began listening to the recorded calls on the same day as the disks containing the recordings were received from Corrections on 18 August 2009. At that stage the police did not have any way of identifying calls before listening to them, and so an instruction was given that if a call was directed to Mr Gibson, it should not be listened to once that had been established.
Although the officers listening to the calls were involved in Operation Valley, the screening report form they used sometimes also referred to Operation Jivaro. This meant the screening officers were asked to listen for anything of relevance to the drugs charges against Mr Beckham, as well as information about the planned escape and threats to Detective Sergeant Schmid.
19 August 2009
On 19 August 2009, Detective Sergeant Lunjevich became aware that one call to Mr Gibson had been listened to in its entirety, albeit a call by a prisoner other than Mr Beckham. The following day he issued an email instruction to his analysts to remove all the calls to Mr Gibson’s number from the shared access drive in the police computer on which the call recordings were stored. However, only three of the nine calls to Mr Gibson’s number were, in fact, removed (including the call that had been listened to). The remainder were not removed until 15 December 2010. On the same day Detective Sergeant Lunjevich issued an email instruction to his staff confirming that calls to Mr Gibson’s number were not to be listened to.
The evidence was that during the period between the commencement of the screening exercise and the issuing of this written instruction, three calls to Mr Gibson were listened to but, with the exception of the call from the other prisoner to which reference has already been made, these were listened to only to the extent of identifying that the call was to Mr Gibson. So no element of any privileged communication between Mr Beckham and Mr Gibson was listened to.
On the same day, Corrections provided the police with a spreadsheet which set out the number to which each call on the disks provided by Corrections was made. Once this was received by police, this enabled the screeners to be made aware that a call was to Mr Gibson before they began listening to it. Steps were then taken to ensure that calls to Mr Gibson were not listened to by the officers undertaking the screening.
3 September 2009
Customs issued a second requisition to Corrections on 3 September 2009, requiring Corrections to produce Mr Beckham’s call data for the period between 11 August 2009 and 3 September 2009. Again, calls to Mr Gibson were not excluded from the data provided.
18 September 2009
On 18 September 2009, Detective Sergeant Lunjevich received a disk from Customs containing recordings of telephone calls made covering the period from 7 August 2009 to 3 September 2009. Calls were identified by date and time, but not by the destination number. This meant that all calls had to be listened to and Detective Sergeant Lunjevich instructed his staff that if a call was to Mr Gibson, they were to stop listening once they had established that fact. Three calls to Mr Gibson were included in the data provided by Customs and, and in each case, the screener recorded that he or she had not listened to the call beyond establishing that it was to Mr Gibson.[6]
14 December 2009
[6]It appears that in one of the calls Mr Gibson was unavailable in any case.
Detective Sergeant Lunjevich provided a copy of the schedule of calls to Detective Peat, a detective working in the police Asset Recovery Unit, on 14 December 2009.[7] Sometime in December he also provided Detective Peat with two computer disks which contained the recordings of Mr Beckham’s phone calls that had been derived from the searches, and to which the schedule referred.[8]
21 December 2009
[7]The significance of this is that Detective Peat was investigating money laundering aspects of Mr Beckham’s alleged drug offending, although he was not a member of the drug squad team responsible for Operation Jivaro. He gave evidence at Mr Beckham’s trial. Andrews J had found that no data obtained by the Operation Valley team was disclosed to the Operation Jivaro team: see Beckham (HC) No 1, above n 4, at [82](d).
[8]As explained below, the fact that this material had been provided to Detective Peat did not come to light until after Andrews J had delivered her judgment in Beckham (HC) No 1, above n 4.
Mr Beckham applied for electronically monitored bail. On 21 December 2009, that application was dismissed by Duffy J.[9]
6 January 2010
[9]Beckham v New Zealand Police, HC Auckland, CRI-2009-404-258, 21 December 2009 [Beckham (HC) Bail No 1].
Detective Sergeant Lunjevich obtained a further search warrant on 6 January 2010 for the recordings held by Corrections of Mr Beckham’s calls from 3 September 2009 onwards. Again, the application for the warrant referred to the numbers to which Mr Beckham was entitled to make calls, including Mr Gibson’s number. The application for the warrant did not set out any process to deal with any privileged calls. However, Detective Sergeant Lunjevich did, when executing the warrant, request that Corrections exclude any calls to Mr Gibson from the data provided to the police by Corrections. This prompted Corrections to make arrangements to ensure that future calls to Mr Gibson from the public (monitored) phone were not recorded.
4 February 2010
Corrections provided the data sought by the police pursuant to the 6 January 2010 warrant on 4 February 2010. This covered calls from 3 September 2009 to 11 January 2010.
25 June 2010
An affidavit dated 25 June 2010 from Detective Inspector Good outlining the processes adopted by the police in relation to the call data received from Corrections revealed that “selected information obtained from the screened phone calls from Corrections was directed to the Proceeds of Crime Unit” on 14 December 2009.[10] The officer in that unit to whom the call data was provided was Detective Peat. This was the first time that Mr Beckham’s counsel had become aware that the call information had been provided to Detective Peat.
7 July 2010
[10]The Proceeds of Crime Unit is referred to as the Asset Recovery Unit in other documents.
Mr Beckham filed an affidavit in the High Court in support of a second application for bail on 7 July 2010. In the affidavit, Mr Beckham raised the concern that calls to Mr Gibson were being monitored and recorded by Corrections and call data was being provided to the police.
28 July 2010
Mr Gibson, on behalf of Mr Beckham, filed a memorandum in the High Court in support of the second bail application on 28 July 2010. In that memorandum, Mr Gibson said that the fact that calls by Mr Beckham to him had been monitored and that call data had been provided to the police meant that it was no longer practical for Mr Beckham and Mr Gibson to make contact over the telephone. He said Mr Beckham was being denied the right to prepare properly for trial. He said releasing Mr Beckham on bail would be an “effective and efficient remedy”, which would “ensure the integrity of the criminal justice system is protected”.
18 August 2010
Mr Beckham’s second bail application was successful and he was granted bail by Duffy J on 18 August 2010.[11] One of the reasons for granting bail was the difficulty Mr Beckham was having communicating with lawyers when conversations using prison telephones were regularly intercepted and copies of the intercepted communications forwarded to the police.[12]
19 August 2010
[11]Beckham v New Zealand Police, HC Auckland, CRI-2009-404-258, 18 August 2010 [Beckham (HC) Bail No 2].
[12]At [20].
Mr Beckham’s counsel sought disclosure of relevant information from Operation Valley on 19 August 2010. The Crown responded on 23 September 2010. The Crown did not disclose significant amounts of information about the monitored calls, including the search warrant applications, the screening sheets, or the schedule that was provided to Detective Peat.
18 November 2010
Mr Beckham filed his first application for a stay of the proceedings on 18 November 2010.
4 February 2011
After a five-day hearing, Andrews J refused the first stay application in a judgment issued on 4 February 2011.[13]
7 February 2011
[13]Beckham (HC) No 1, above n 4.
Mr Beckham’s High Court trial began on 7 February 2011. The trial continued until mid April 2011.
1 March 2011
Affidavits from Detective Peat and Detective Sergeant Lunjevich were sworn on 1 March 2011, recording that call data, including recordings of privileged calls, had been provided to Detective Peat by Detective Sergeant Lunjevich. In his affidavit, Detective Sergeant Lunjevich also informed the Court that, contrary to his previous understanding (and his evidence at an earlier hearing before Andrews J), recordings of three calls from Mr Beckham to Mr Gibson had not been deleted from the police computer system in December 2010. Those calls were deleted on 7 February 2011.
14 March 2011
Mr Beckham filed a second application for stay on 14 March 2011 (during the course of his High Court trial). At the same time, he filed an application for further evidence, seeking an order that the Crown be required to call further witnesses, namely all police officers to whom access to audio recordings of privileged calls between Mr Beckham and his counsel had been provided. This was so their evidence could be considered in the context of the second stay application.
11 April 2011
The jury in the High Court trial returned its verdict on 11 April 2011. Mr Beckham was convicted on two counts of manufacturing methamphetamine, two counts of conspiring to manufacture methamphetamine, two counts of possession of methamphetamine for supply, eight counts of supplying methamphetamine and single counts of conspiracy to supply methamphetamine, supplying cocaine, supplying MDMA, possession of MDMA for supply, conspiracy to supply MDMA, conspiracy to produce cannabis oil, and possession of cannabis plant for supply. He was also convicted on three counts of money laundering.
29 April 2011
A hearing took place before Andrews J on 29 April 2011, at which Detective Sergeant Lunjevich and Detective Peat gave evidence. Significantly, this evidence disclosed two matters that had not been known to the Court when dealing with the first stay application. These were that Detective Sergeant Lunjevich had given Detective Peat two disks which included calls to Mr Gibson and that Detective Sergeant Lunjevich had discovered on 28 February 2011 that the recordings of three calls to Mr Gibson had not been deleted from the police computer system as he had thought had occurred.
3 May 2011
Having heard this evidence, Andrews J ordered that the disks held by Detective Sergeant Lunjevich (which had been returned to him by Detective Peat) be held by the Court pending resolution of the second application for a stay but declined to make an order that all members of the Operation Valley team and all officers working in the Asset Recovery Unit be required to give evidence. This judgment was issued on 3 May 2011.[14]
23 May 2011
[14]R v MB HC Auckland CRI-2008-004-29112, 3 May 2011 [Beckham (HC) No 2].
The second application for a stay was heard by Andrews J on 17 May 2011. She dismissed the application in a judgment delivered on 23 May 2011.[15]
12 August 2011
[15]R v MB HC Auckland CRI-2008-004-29112, 23 May 2011 [Beckham (HC) No 3].
On 12 August 2011, Mr Beckham was sentenced to a term of imprisonment of 13 years and six months cumulative on a sentence of seven and a half years that Mr Beckham was already serving.[16] A minimum period of imprisonment of seven years was imposed. The Judge recorded that if it had not been for the fact that Mr Beckham was already serving a sentence of seven and a half years’ imprisonment on kidnapping charges, the appropriate sentence would have been a term of imprisonment of 18 and a half years.[17]
Allegations of breach of privilege dealt with by High Court and Court of Appeal
[16]R v Beckham HC Auckland CRI-2008-404-29112, 12 August 2011 (Sentencing notes of Andrews J).
[17]At [35].
As indicated earlier, the focus of the applications for stay in the High Court and the appeal to the Court of Appeal was on allegations of breach of solicitor/client privilege. It was argued that the two applications for search warrants made by Detective Sergeant Lunjevich to the District Court and the obtaining of call data from Customs all occurred in circumstances where the police knew that communications between Mr Beckham and Mr Gibson were likely to be included but did not take steps to notify the issuing judicial officer nor to exclude Mr Gibson’s number from the applications. This led to the police obtaining access to calls between Mr Beckham and Mr Gibson and, in one case, between Mr Beckham and another solicitor, Mr Palmer, when it was obvious that solicitor/client privilege applied to these calls.
The High Court Judge, having reviewed the evidence of how the calls were processed by the screeners under the supervision of Detective Sergeant Lunjevich, found that no calls from Mr Beckham to Mr Gibson were listened to, beyond the point necessary to identify that the call was to Mr Gibson.[18] She found that of the 12 calls made to Mr Gibson’s number, one was listened to in its entirety, but was a call made by another inmate, and five were listened to only to the extent necessary to determine the call was to Mr Gibson. Of those five, three were calls made by Mr Beckham.[19] The Judge concluded that no other calls from Mr Beckham to Mr Gibson were listened to, inferring this from the fact that the notes prepared by the screeners omitted any reference to these calls. These findings were upheld by the Court of Appeal.[20]
[18]Beckham (HC) No 1, above n 4, at [40]–[45].
[19]At [40].
[20]Beckham (CA), above n 1, at [87].
Mr Mount did not challenge further these findings of fact.
New allegations of breach of privilege
As noted at [5] above, the Court granted leave to Mr Beckham to make further written submissions dealing with further alleged breaches of privilege. The focus was on calls made by Mr Beckham to persons other than Mr Gibson which, it is argued, were either subject to solicitor/client privilege or to litigation privilege. No reference to these calls was made in the two applications for stay made in the High Court, nor was there any reference to them in the appeal to the Court of Appeal. The reason given for this by counsel for Mr Beckham is that Mr Beckham and his counsel were unaware of the nature of these calls until Mr Mount received a lengthy schedule of the report compiled by the screeners of the call data received by the police from Corrections and Customs. It was only when he scrutinised this schedule that these alleged breaches of privilege became apparent.[21]
[21]Mr Beckham did however know that recordings of calls he made from the monitored phone had been obtained from the police from 2010 and would have known he had discussed his case with Ms Taylor and Gary Beckham during some of those calls.
The schedule had not been disclosed by the police prior to Mr Beckham’s trial, but was produced as an exhibit at the hearing of the second application for stay in the High Court on 29 April 2011. This arose when Detective Peat was giving evidence in the High Court and made reference to the schedule. When it became apparent that Mr Gibson did not know about the schedule, the Court adjourned to allow Detective Peat to return to the police station to retrieve a copy. That copy was then produced as an exhibit and Mr Gibson cross‑examined Detective Peat on aspects of it. However, it seems that neither Crown counsel nor Mr Gibson was provided with a copy. So, although Mr Gibson knew of the existence of the schedule, he did not have a copy. Mr Mount says he was not made aware of the schedule until he was preparing for the appeal to this Court. It is for this reason that no mention of it was made in the Court of Appeal.
Given that the existence of the schedule was known to counsel then acting for Mr Beckham before the appeal to the Court of Appeal, it is questionable as to whether the schedule should be able to be produced in this Court. Its production in this Court without having been considered by either the High Court or the Court of Appeal creates obvious problems for this Court in having to assimilate an extensive amount of factual data without the assistance of the Courts below. It also makes this Court effectively a Court of first and last resort in relation to any factual issues arising from the material.
However, the Court gave leave for counsel to address the issues relating to the alleged breaches of privilege that are said to be evidenced by the schedule. We therefore address the issues now.
(a) Alleged breaches of solicitor/client privilege
Mr Mount said three of the calls made by Mr Beckham to his partner, Jenny Taylor, involved material that was subject to solicitor/client privilege. We will deal with each of these in turn.
(i) 25 May 2009
The first example given by Mr Mount relates to a call between Mr Beckham and his partner Ms Taylor, that took place on 25 May 2009. This call lasted eight minutes and 28 seconds. In one part of the call, which lasted about three minutes, there was a discussion during which Mr Beckham and Ms Taylor discussed the circumstances in which Mr Beckham had purchased an apartment property in Auckland. Ms Taylor said the police had sought an interview with her father about this. At one stage, it was suggested that Ms Taylor would ask Mr Gibson if he wanted Ms Taylor’s parents to write to the police saying they did not agree to an interview by the police. Mr Beckham and Ms Taylor seemed to be concerned that if they did speak to the police it would be unhelpful to the defence case. This did not therefore relate to the obtaining of advice from Mr Gibson but (potentially) the procuring of advice for Ms Taylor’s parents.
(ii) 5 July 2009
The second example relates to a call made on 5 July 2009. In that call, Mr Beckham told Ms Taylor to contact Wayne McKean, a lawyer who had acted for Mr Beckham on other criminal matters, and ask him to send to Mr Gibson material held by Mr McKean that had been subject to police disclosure. This did not involve any privileged communication with Mr McKean. He then told Ms Taylor to tell Mr Gibson that a suggestion in the disclosure material that Mr Beckham had imported unspecified material (presumably drugs or products associated with drugs) was untrue. He then referred to the fact that there was a reference in the disclosed material to the fact that Mr Beckham is known as “the boss” or “captain”. Mr Beckham said it was not true that he was known as “captain” and that in fact “captain” referred to another person, Wayne Hunter.
Mr Mount said that there had been reference to Mr Beckham being known as “captain” in an application for a call data warrant made by the police in October 2008, so it appears that the police believed Mr Beckham was, in fact, known by that name. By accessing this call the police became aware that Mr Beckham was instructing Mr Gibson that it was incorrect that he was known as “captain”. This meant the police officers were forewarned that any evidence they adduced at the trial to that effect would be shown to be wrong, and this deprived Mr Beckham of an aspect of his defence.
The particular extract is equivocal as to whether Mr Beckham was, in fact, telling Ms Taylor to instruct Mr Gibson along those lines. It is clear that he was telling Ms Taylor to tell Mr Gibson that it was not true that he had imported drugs, as the police disclosure material said. That was simply a statement of denial of offending, something his not guilty plea had already made clear. It disclosed nothing. But the material about the “captain” appears to be simply a discussion on the topic with Ms Taylor rather than an invitation for her to instruct Mr Gibson to that effect. As such, it appears to us to be, at best, a matter relating to litigation privilege, and not to trigger any solicitor/client privilege.
It is notable that this exchange between Mr Beckham and Ms Taylor comprises less than one minute of a call which lasted six minutes and 18 seconds.
(iii) 12 September 2009
The third example relates to a discussion between Mr Beckham and Ms Taylor during a call on 12 September 2009. The total length of the call was 14 minutes and 58 seconds. There was an exchange comprising about one minute of that call, in which there was a discussion about Detective Sergeant Schmid. In this excerpt Mr Beckham referred to something he had said to Mr Gibson about the police having taken a car under the Proceeds of Crime legislation. But it is not clear that this involved any instruction to Mr Gibson. There was also a request to Ms Taylor to contact Mr McKean in relation to the proceeds of crime issue, but this did not give any indication of what Mr McKean had been instructed to do. However, later in the call there was a reference by Mr Beckham to Detective Sergeant Schmid, including an allegation by Mr Beckham that Detective Sergeant Schmid has been threatening potential witnesses. Mr Mount said that the defence strategy was to impugn the integrity of Detective Sergeant Schmid at the trial, although ultimately this was ineffective. He said, however, listening to this part of the call informed the police of this trial strategy. That, however, is also a question, if anything, of litigation privilege, and we will deal with it in that context.
Our evaluation – new allegations of breaches of solicitor/client privilege
Solicitor/client privilege is dealt with in s 54 of the Evidence Act. Under s 54(1), a person who obtains legal services from a legal advisor has privilege “in respect of any communication between the person and the legal advisor” if the communication was intended to be confidential and made in the course of, and for the purpose of, obtaining professional legal services from the legal advisor or the legal advisor giving such services to the person.
In this case there was no communication between Mr Beckham and his legal advisor. Mr Mount relied on s 51(4) of the Evidence Act. That provision says:
A reference in this subpart to a communication made or received by a person … includes a reference to a communication made or received … by an authorised representative of that person on that person’s behalf.
We accept the solicitor/client privilege could potentially apply where an accused person gives instructions to his or her lawyer through an intermediary, as Ms Taylor was here. However, for the reasons given in relation to each call, we do not think it has been established that they involved communications made in the course of and for the purpose of obtaining legal advice for Mr Beckham in relation to his case. It is not clear whether the discussions between Mr Beckham and Ms Taylor were communicated to Mr Gibson and it is, at best, equivocal as to whether that was even the intention.
We conclude that solicitor/client privilege does not attach to the communications. We now turn to the claim of litigation privilege.
(b) Alleged breaches of litigation privilege
Mr Mount said that there are a number of references in the calls between Mr Beckham and Ms Taylor, as well as between Mr Beckham and his son, Gary Beckham, in which trial strategy or potential witnesses are discussed. He identified 24 calls in which such references occurred. He acknowledged this was a very small proportion of the calls made by Mr Beckham (about one per cent). Mr Mount said these calls attracted litigation privilege because they were communications for the dominant purpose of preparing for his trial. Mr Mount provided us with a schedule of the 24 calls which he said included information subject to litigation privilege. In his oral submissions he highlighted nine of these and we will deal with each of those nine calls in turn.
(i) Innocent use of precursor substances
In a call made on 3 August 2009, Mr Beckham referred to the chemicals found on his property which were alleged to be precursor substances. He referred to acetone, caustic soda, iodine and “zededine” and suggested that each had a legitimate use on the farm property. Mr Mount said this reflected the defence at trial. It is notable this exchange between Mr Beckham and Ms Taylor began seven minutes into a call that lasted nearly 13 minutes, and continued for less than two minutes. Earlier in the call, Ms Taylor had said to Mr Beckham:
These are things you shouldn’t be saying on the phone because it gives away everything you shouldn’t be telling.
(ii) Fingerprints on glassware (1)
In the call made on 5 July 2009, to which reference has already been made,[22] Mr Beckham told Ms Taylor that he had evicted a man called Frank Murray from his property because Mr Murray had been “doing something to do with … cooking or something” and that he had told Mr Murray to put material associated with Murray (which Mr Mount told us was, in fact, glassware associated with drug manufacturing) on Mr Beckham’s farm. Mr Beckham said “[t]hat’s why my prints possibly could be on something” which Mr Mount said was a reference to part of his defence explaining why Mr Beckham’s fingerprints were on glassware associated with drug manufacturing found on Mr Beckham’s property. This explanation was part of Mr Beckham’s defence at the trial.
[22]Above at [54].
The exchange relating to this topic appears to have taken about one minute in a call lasting six minutes and 18 seconds.
(iii) Fingerprints on glassware (2)
In a call made by Mr Beckham on 20 August 2009 to Scott Piggott there was a discussion about glassware found on Mr Beckham’s property. Mr Beckham first suggested that it seemed that the police had pulled fingerprints from other items and placed them on the glassware, but then also mentioned that “I was doing the olive oil and everything”, which Mr Mount said was a suggestion that Mr Beckham’s fingerprints were on the glassware because he had used it in the process of making olive oil. That explanation was also put forward at the trial. The olive oil reference was an exchange of a few seconds in a call lasting 15 minutes and 27 seconds. The wider discussion of glassware occupied about one and half minutes of the call.
(iv) Money from legitimate sources
Part of the Crown case was that Mr Beckham’s wealth could not be explained from legitimate earnings and that this therefore supported the case that he had made money from drug dealing. In the prosecutor’s closing address, he referred to Mr Beckham having large amounts of cash, and money being invested in a boat, his partner’s bank account and an apartment at Alpha Apartments.
Mr Mount said that Mr Beckham’s defence was that the funds had been obtained from legitimate sources, and this had been the topic of discussion in calls on 12 April, 16 April, 20 April and 25 May 2009. Details are as follows:
(a)The 12 April call was a call lasting just under 12 minutes from Mr Beckham to his son, Gary Beckham. During this phone call Mr Beckham and his son discussed various properties over a period of about five minutes, and at the conclusion of the call Mr Beckham said that the capital gains made from the properties were wrongly characterised by the police as drug money.
(b)The call on 16 April 2009 was another call between Mr Beckham and his son Gary which lasted just under nine minutes. In one exchange which appears to have taken a few seconds, Mr Beckham told his son that the police were trying to say that the money for his apartment came from drug deals but that the people who had given him money were not involved in drugs.
(c)The call on 20 April 2009 was another call between Mr Beckham and his son Gary which lasted ten minutes and 23 seconds. At various points in this conversation there were discussions of property transactions, the overall theme of which is that these transactions had led to Mr Beckham making legitimate profits, rather than this money having come from drug dealing. The conversation on this overall topic extended over about three and a half minutes.
(d)The call of 25 May 2009 was a call by Mr Beckham to his partner, Ms Taylor, to which reference has already been made above.[23] During that call there was a brief discussion lasting a few seconds in which Mr Beckham referred to money provided to Ms Taylor by her father.
(v) Editing of interception data
[23]Above at [53].
In the call made on 20 April 2009 from Mr Beckham to his son Mr Beckham observed that the police had extracted a small amount of information from the voluminous amount of data derived from the interception of communications and that this information, when taken out of context, would seem incriminating. This was a brief exchange of about a minute and a half in a call of ten minutes and 23 seconds duration. Mr Mount said this was an aspect of the defence case. The point was made in defence counsel’s closing at the trial that the apparently incriminating calls were a tiny proportion of all of the communications that were intercepted and that this had been taken out of context.
(vi) “Captain” reference
This has already been discussed above.[24]
(vii) Denial of involvement in 10 December manufacture
[24]At [55].
In the call made on 16 April 2009 from Mr Beckham to his son Gary Mr Beckham observed that the police were alleging that he received methamphetamine manufactured on 10 December 2008 and sold it, which he described as “all lies”. The observation occupied a few seconds of the call which lasted nearly nine minutes. The allegation had been included in a summary of facts prepared by the police, but the allegation was not advanced at trial. Mr Mount suggested that this was because the police had become aware of Mr Beckham’s denial. A more plausible explanation would be that the police did not make the allegation because they could not prove it.
(viii) Legitimate trips to China
In Mr Beckham’s defence counsel’s closing address at the trial, he recorded that Mr Beckham’s son Gary had given evidence about the legitimate purpose for trips to China. Counsel observed that it was now accepted that they were, indeed, legitimate. The trips to China were discussed by Mr Beckham with Gary in a call made on 26 March 2009. The call lasted six minutes and nine seconds. In an exchange lasting a few seconds Mr Beckham said to his son, Gary, that no trip he made to China had anything to do with methamphetamine. A similar discussion took place in a later call made on 22 July 2009 by Mr Beckham to his son, Gary. That call lasted just over 13 minutes and the exchange occupied less than one minute.
(ix) Allegation of unethical conduct by Detective Sergeant Schmid
This has been dealt with above.[25]
Our evaluation – new allegations of breaches of privilege
[25]Above at [58].
We now evaluate the nine examples of alleged breach of litigation privilege and the three additional allegations of breach of solicitor/client privilege which, for reasons given above, we treat as involving claims for litigation privilege.[26]
[26]Above at [59]–[61].
As noted earlier, we have faced a number of difficulties in evaluating the factual significance of these calls. First, we have no High Court or Court of Appeal findings of fact. Second, we have heard no evidence in response from the Crown, and indeed Mr Boldt did not really engage with the factual aspects of these calls in his submissions. Third, the transcripts provided to us are transcripts of the parts of the calls that Mr Mount wished to highlight to us without having transcripts of the rest of the calls (in all cases, the greater part of the call). In those circumstances, it is difficult for us to establish the context.
Mr Mount argued that these communications attracted the privilege provided for in s 56 of the Evidence Act. Under that section, a person who is, or on reasonable grounds contemplates becoming, a party to a proceeding has privilege in respect of communications between that person and any other person, but “only if the communication … is made [or] received … for the dominant purpose of preparing for a proceeding or an apprehended proceeding”.
We will assess the claims for litigation privilege by first considering the dominant purpose criterion and then considering whether the communications were confidential (or whether the privilege requires that the communication be confidential).
(i) Dominant purpose
There is no doubt in the present case that Mr Beckham was, at the time of the relevant phone calls, a party to a proceeding (the prosecution for drugs offences). So the question that needs to be determined is whether the communications between Mr Beckham and the recipients of the phone calls were communications made or received for the dominant purpose of preparing for the trial.
As is clear from our summary of the calls, only small portions of the calls are the subject of claims of litigation privilege. This suggests that the dominant purpose of the calls between Mr Beckham and his partner and son were family and personal matters, rather than preparation for the trial. However, Mr Mount argued that it was not necessary for Mr Beckham to establish that the dominant purpose of each call was preparation for trial, but rather that the dominant purpose of the particular excerpt from the call for which the privilege claim is made was for the purpose of preparing for trial. In support of that argument he cited the decision of the Federal Court of Australia in Kennedy v Wallace.[27] In that case, Allsop J said:[28]
If a conversation or a note can be divided up such that privileged and non‑privileged material can be segregated, the communications or writing made for the dominant purpose of obtaining legal advice will be privileged, even if the balance of the communications, perhaps even if most of the communications go to other matters.
[27]Kennedy v Wallace [2004] FCAFC 337, (2004) 142 FCR 185.
[28]At [159].
That case dealt with solicitor/client privilege rather than litigation privilege, and the statement was made in a context where the issue related to the requirement to discover non‑privileged material in civil litigation. The other Judges (Black CJ and Emmett J) made no comment on this statement and decided the case on different grounds. It is notable that in the paragraph immediately preceding the extract quoted above, Allsop J said:[29]
If there is one conversation or one body of writing incapable of being broken up into which there is intermingled privileged material and non-privileged material the communication as one or as a whole will only be protected if the dominant purpose of the communication or the creation of the writing was to give or receive or record legal advice.
[29]At [158].
There are other authorities supporting the proposition that, where privilege is claimed for a whole document but the document can properly be severed into non‑privileged and privileged portions, then only the privileged portion can be withheld from disclosure.[30]
[30]See for example, Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191, (2012) 209 FCR 1; and Waterford v CommonwealthofAustralia (1987) 163 CLR 54 at 66 per Mason and Wilson JJ and 85 per Deane J. There is also English authority supporting this approach, see for example: GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 (CA); and Hellenic Mutual War Risks Assoc (Bermuda) Ltd v Harrison (“The Sagheera”) [1997] 1 Lloyds Rep 160 (QB) at 170.
The report of the Law Commission preceding the Evidence Act made it clear that the provision that is now s 56 was “intended to state the existing law as laid down by the Court of Appeal in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart”.[31] In Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart, the Court of Appeal adopted the dominant purpose test in place of an earlier more liberal, “appreciable purpose” test.[32] It is clear that the intention of the Court of Appeal in that case was to limit the scope of litigation privilege. In his judgment, Richardson J observed that “the public interest is best served by rigidly confining within narrow limits the cases where material relevant to litigation may be lawfully withheld”.[33]
[31]Law Commission Evidence, Volume 2: Evidence Code and Commentary (NZLC R55, 1999) at 151.
[32]Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 (CA).
[33]At 605.
We think it is consistent with the intention of the legislature to adopt the law set out in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart to apply the dominant purpose test with some rigour. We do not think that the approach suggested by Mr Mount is sustainable, essentially because it undermines the dominant purpose test and renders it meaningless.
We accept that there may be cases where a proper delineation can be made between different parts of a document. However, applying an approach of severing material prepared for the purpose of trial from other material when dealing with written documents and in circumstances where legal advice can be obtained is easier than attempting to do this in relation to discursive and wide ranging telephone conversations where the topics discussed are varied and sometimes intertwined. The exercise is even more difficult in the present case because we have only the material in respect of which litigation privilege is claimed, and do not have transcripts of the remainder of the telephone conversations concerned.
But, doing the best we can on the basis of the information before us, we accept the submission made by Mr Boldt on behalf of the Crown that the overall purpose of the communications between the appellant and his partner and son appears to be simply keeping in touch and discussing normal domestic and business matters, rather than preparation for trial.[34] Certainly the material which is now said to be subject to (indirect) solicitor/client privilege and litigation privilege appears to be a very small proportion of the conversations overall. We do not consider that it is possible on the evidence before us to form a view that there are separately divisible parts of the conversations to which litigation privilege could attach.
[34]Mr Boldt accepted that one call, from Mr Beckham to his son, Gary, could be said to have had the dominant purpose of discussing Mr Beckham’s defence. Gary Beckham was with Mr Palmer at the time and handed the phone to Mr Palmer. The police officer did not listen to, or record, the discussion with Mr Palmer.
On the basis of the evidence we have, we consider that the dominant purpose of the conversations must be considered in reference to the conversation as a whole, and we are not able to find in respect of any of the conversations that the dominant purpose was preparation for trial.
(ii) Confidentiality
Mr Boldt argued that, even if it could be established that the dominant purpose of any of the communications was preparation for trial, none of the communications was made in circumstances where confidentiality was assured or even expected. That is because the calls between Mr Beckham and Ms Taylor and Gary were all made from the monitored phone at the prison. As noted earlier, calls from the monitored phone are preceded by an automated warning that the call will be monitored and may be listened to.
Mr Beckham said in evidence that he realised that calls made from the monitored phone were subject to this requirement. It is also clear from some of the conversations that he realised this, for example in one conversation he mentioned that he needed to talk about something but that he could not do so on the telephone because of the possibility of monitoring. We therefore accept Mr Boldt’s submission that the calls from Mr Beckham to Ms Taylor and Gary were not made in circumstances where confidentiality was expected.
Mr Boldt argued that confidentiality was a prerequisite for a claim of privilege: if that communication was made with no expectation of privacy or confidentiality, then privilege could not be asserted. In support of this he cited the Law Commission Report on Evidence,[35] Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart[36] and the decision of the Court of Appeal in Ophthalmological Society of New Zealand Inc v Commerce Commission, in which the Court observed that “it is the essence of privilege that the material to which it attaches is confidential”.[37] In oral submissions he also cited the post-Evidence Act decision in this Court of Jeffries v Privacy Commissioner, where Elias CJ observed that “[s]ection 56, like the common law of litigation privilege it replaces, is concerned, rather, with preserving confidentiality in the preparation for a proceeding.”[38]
[35] Law Commission Evidence, Volume 1: Reform of the Law (NZLC R55, 1999) at [248].
[36] Guardian Royal Exchange Assurance Co of New Zealand Ltd v Stuart, above n 32, at 601.
[37]Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145 (CA) at [20].
[38]Jeffries v Privacy Commissioner [2010] NZSC 99, [2011] 1 NZLR 45 at [21].
Mr Mount had a number of answers to this.
First, he argued that confidentiality was not a prerequisite for the assertion of litigation privilege. In that regard he noted that s 56 does not refer to confidentiality, unlike s 54, which deals with solicitor/client privilege.
We accept that there is no reference to confidentiality in s 56. But we think a requirement for confidentiality is consistent with the fact that s 56 was intended to codify the law as stated in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart, given the reference in that decision not only to confidentiality but also to the need to confine the boundaries of litigation privilege. The law in both the United Kingdom and Australia requires confidentiality as an element of privilege.[39] Two Canadian cases suggest otherwise. But there is no substantive reasoning in either case supporting the conclusion that confidentiality is not required for the privilege.[40]
[39]In Australia and the UK the existence of a separate litigation privilege at common law is contentious, and in both cases legal professional privilege has a requirement of confidentiality: J D Heydon (ed) Cross on Evidence Australian Edition (looseleaf ed, LexisNexis) at [25210] and H M Malek (ed) Phipson on Evidence (18th ed, Sweet & Maxwell, London, 2013) at 692–693). Australia also has a statutory litigation privilege which requires confidentiality: see Evidence Act 1995 (Cth), s 119. See also Crisford v Haszard [2000] 2 NZLR 729 (CA) at[40]Blank v Canada (Minister of Justice) 2006 SCC 39, [2006] 2 SCR 319 at [32] and General Accident Assurance Co. v Chrusz (2000) 180 DLR (4th) 241 (ONCA) at 255.
The requirement for confidentiality is consistent with s 65 which deals with waiver of privilege, and applies to all of the different types of privilege described in ss 54–60 and in s 64 of the Evidence Act. Under s 65(2), waiver occurs when the person claiming privilege voluntarily discloses or consents to production of the privileged communication “in circumstances that are inconsistent with a claim of confidentiality”. It is hard to see why that requirement would apply to privilege asserted under s 56 if there was no requirement in the first place for confidentiality.
Second, Mr Mount argued that the fact that calls were monitored did not destroy the privileged status of the calls because the statutory power to monitor is restricted and specifically preserves privilege. He referred in particular to s 122 of the Corrections Act 2004, which says that evidence obtained by monitoring of a prisoner call would, but for the monitoring, have been privileged, remains privileged and must not be given in any Court except with the consent of the person entitled to the privilege.
The nature of the privilege preserved by s 122 is somewhat enigmatic, because it is described in this section as privilege “by virtue of … any provision of Part 3 of the Evidence Amendment Act (No 2) 1980”. Unfortunately that section was not updated when the Evidence Act was passed in 2006. Part 3 of the Evidence Amendment Act (No 2) 1980 did not refer to litigation privilege, that is, it had no equivalent to s 56 of the Evidence Act. Mr Mount said that s 22 of the Interpretation Act 1999 applies in this situation.
Section 22(2) says that any reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification, replaces, or that corresponds to, the enactment repealed. In this case Part 2, subpart 8 of the Evidence Act 2006 is the part of the 2006 Act that replaces or corresponds to Part 3 of the 1980 Act. We agree with Mr Boldt that the difference in scope of Part 2, subpart 8 of the 2006 Act from the more limited Part 3 of the 1980 Act suggests that it would not be appropriate to treat the whole of Part 2, subpart 8 of the 2006 Act as the replacement for Part 3 of the 1980 Act when applying s 22(2) of the Interpretation Act.
The definition of “enactment” in s 29 of the Interpretation Act refers to “a portion of an enactment”, so the intention of s 22 can be fulfilled by treating the reference in s 122 of the Corrections Act to Part 3 of the 1980 Act as referring to the provisions of the 2006 Act that correspond with the provisions appearing in Part 3 of the 1980 Act. That avoids a substantial change in the scope of s 122 occurring by essentially a side wind. Accordingly, we conclude that s 122 does not preserve litigation privilege in monitored calls. If the legislature intends to extend the scope of s 122 in that way, it should do so expressly.
Mr Boldt also argued that, if confidentiality had been preserved, the privilege had been waived in terms of s 65(2) of the Evidence Act because statements were made on monitored calls. We do not think this requires separate analysis given our earlier conclusions. We have concluded that the conversations did not have the necessary confidentiality from the outset.[41]
Conclusion – new allegations of breaches of privilege
[41]Above at [89].
In those circumstances, we do not consider there is a sufficient evidential basis for us to take into account the new allegations of breach of privilege in considering the appeal against the Court of Appeal’s refusal to grant a sentence reduction or the application for leave to appeal against conviction.
Evaluation of the facts: five propositions
We have traversed the factual background in some detail because this was a major focus of the oral submissions made to us by counsel for Mr Beckham, Mr Mount, and because the allegations advanced by Mr Mount in support of Mr Beckham’s case appeared to us to be out of step with the facts as found in the High Court and, in relation to the new information, with the evidence available to us. Five of the propositions advanced by Mr Mount related to the facts of the case, and it is convenient to address our evaluation of the facts by reference to those propositions.
Proposition 1
Mr Mount’s first proposition was:
The Police unlawfully seized all the Appellant’s recorded telephone calls over 11 months while he was on remand on [drugs] charges. The Police twice obtained search warrants that included calls to his lawyer, without telling the Court of their intention.
The seizures referred to by Mr Mount were those pursuant to the two search warrants and also the material provided to the police by Customs. The High Court Judge found that the failure of Detective Sergeant Lunjevich to exclude Mr Gibson’s number from the application for the search warrants and to ensure that provision was made to deal with privileged material was “an oversight”.[42] She accepted that Detective Sergeant Lunjevich did not turn his mind to the need to disclose to the issuing officer the possibility of privileged information being seized pursuant to the warrant and that “he did not deliberately and consciously make a decision to withhold that information from the Court”.[43]
[42]Bcekham (HC) No 1 , above n 4, at [82](a).
[43]At [82](a).
In those circumstances we uphold the decision of the Court of Appeal to refuse a reduction in sentence.
Result
The application for leave to appeal against conviction is dismissed. The appeal against sentence is dismissed.
Solicitors:
Moala Merrick Ltd, Manukau for Appellant
Crown Law Office, Wellington for Respondent
[29]–[30].
[98]–[100].
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