Beri v The Queen

[2004] NZCA 107

IN THE COURT OF APPEAL OF NEW ZEALAND

CA456/03

THE QUEEN

v

WAYNE DAVID BERI

Coram:Glazebrook J
Hammond J
William Young J

Counsel:Appellant in person

T Smith for Crown

Judgment (On the papers):     29 June 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

[1]       This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions from the appellant and the Crown, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

[2]       The appellant was convicted by a jury of conspiracy to supply morphine sulphate tablets and possession of such tablets for supply.  The trial was before Chisholm J.  The appellant also pleaded guilty to a charge of possession of halcion tablets for supply. 

[3]       The appellant’s appeal against conviction was dismissed but the sentence imposed by Chisholm J was reduced, see R v Beri (CA5/03, 29 May 2003). 

[4]       The Crown subsequently applied, pursuant to s32 of the Misuse of Drugs Act 1975 for the forfeiture of cash found by the police totalling $34,799.65. 

[5]       The charges against the appellant came out of a police operation known as Operation Flyer.  In the termination phase of this operation a motor vehicle which was being driven by the appellant was stopped.  $1,859.65 was found on the appellant and a further $5,840.00 was located on the front seat of the vehicle.  Later, when his house was searched, $9,700.00 was found in the lounge under some clothing, and $17,400.00 in a jar buried in the garden was also located. 

[6]       The Crown case at trial included the contention that the cash located represented the proceeds of drug dealing activities.

[7]       The forfeiture application was based on s32(3) of the Misuse of Drugs Act 1975 which provides:

(3)       If, on the conviction of any person for an offence against section 6 of this Act, the Judge or [District Court Judge] is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the Judge or [District Court Judge] may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.

[8]       In his judgment of 25 September 2003 Chisholm J reviewed the circumstances associated with the appellant’s offending.  At trial the appellant had sought to explain, on an innocent basis, all the money which was found.  He attempted to do so again in response to the forfeiture application.  For the reasons which he gave in his judgment, Chisholm J had no difficulty in rejecting those explanations and he was satisfied that all money found qualified for forfeiture.  He directed forfeiture accordingly.

[9]       We have considered the written submissions filed by the appellant, the response by the Crown and the reply by the appellant. 

[10]     We know that the appellant died after lodging his reply with this Court.  Given the financial nature of the present appeal, we do not regard this appeal as having lapsed, see Barrett v Sarten [1982] 2 NZLR 757 and we consider it appropriate to determine the appeal on the material before us.

[11]     In his reply submissions the appellant effectively recognised that forfeiture of the $1,859.65 which was found on him and the $5,840.00 which was located on the front seat of the vehicle was inevitable.  He persisted with his appeal, however, in relation to the $9,700.00 found in the lounge and the $17,400.00 found in a jar which had been buried in the garden.

[12]     Throughout, the appellant’s position has been that the $9,700.00 which was found in the lounge belonged to his brother Neil Beri.  His position as to this was, broadly, supported by his brother.  The Judge rejected this explanation.  The money was found at a property which he regarded as the primary location for the appellant’s drug dealing activities.  There was a clear absence of any documentary evidence supporting the explanation.  He regarded Neil Beri’s explanation for handing over the money over to the appellant as “thoroughly unconvincing”.

[13]     Nothing was said by the appellant in his written submissions to raise any substantial appeal point in relation to what was, in the end, a factual conclusion based largely on a credibility assessment. 

[14]     According to the appellant, the money in the jar came from legitimate sources, in part what was left of a small inheritance he received from his stepfather and also the proceeds of sale of bone carvings.  He said that he buried the jar sometime after Christmas 1999.  In his evidence at trial he did not elaborate on the reasons for this but in an affidavit in opposition to the forfeiture application he said that the reason was that he was, at the time, suspected of possible involvement in an aggravated robbery and that he and his partner had been asked by a detective if they had “any money stacked under the mattress”.  His affidavit went on:

We made it clear to the police that I had no involvement in that aggravated robbery.  However I became very worried about the fact that every time there was going to be some sort of crime associated with money committed in Christchurch that I will be targeted by the Police.  I therefore decided at that point that whatever money I had would be buried in the garden so that my possession of such money would not attract attention and lead to incorrect assumptions about its origins and cause trouble for me. 

[15]     Inconveniently for the appellant, the money found in the jar included $50 notes which had not been issued until 20 March 2000.  So both in cross-examination at trial and in his response to the forfeiture application, the appellant was driven to contend that he had, from time to time, dug up the jar and either taken money from it or added money to it.  This gloss on what he had originally told the police was required to explain the new notes which were found in the jar but it necessarily cast a significant shadow over his explanation for the money in the jar. 

[16]     Against that background, it was practically inevitable that the Judge would reject the appellant’s explanation and, with that explanation rejected, the only logical inference was that the money was associated with drug dealing activities.

[17]     The judgment of Chisholm J seems to us to be unimpeachable.  Chisholm J had the advantage of having presided over the appellant’s trial.  He gave clear and cogent reasons for his conclusion that forfeiture was warranted.

[18]     In the circumstances, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington