Cave v R
[2013] NZCA 236
•18 June 2013 at 10:15am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA541/2012 [2013] NZCA 236 |
| BETWEEN | JOHN ROBERT CAVE |
| AND | THE QUEEN |
| Hearing: | 15 May 2013 |
Court: | Randerson, Rodney Hansen and Lang JJ |
Counsel: | J G Krebs for Appellant |
Judgment: | 18 June 2013 at 10:15am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
Following trial before Judge Cunningham and a jury in the Auckland District Court, Mr Cave was found guilty of two charges of manufacturing methamphetamine, two charges of supplying a precursor substance and one count of possession of cannabis for the purpose of sale. He was sentenced to five years imprisonment.
Mr Cave appeals against conviction and sentence. He complains that evidence obtained in the course of an undercover operation was wrongly admitted. As a result, the trial was unfair and the convictions amounted to a miscarriage of justice. The sentence is said to be manifestly excessive.
Background
Since 1993 Mr Cave had been the owner and operator of the Colourplus store at Glen Eden. He held the Colourplus franchise which operates painting and decorating outlets nationwide. In February 2009, the Colourplus head office became concerned at the high volume of toluene passing through the Glen Eden store by comparison with amounts sold in other stores. The Glen Eden franchise was accounting for 90 per cent of toluene sold by Colourplus stores in New Zealand. Toluene is a solvent which has a legitimate use in the spray painting industry as a paint thinner. However, it is also widely used in methamphetamine manufacturing for the purpose of extracting methamphetamine from pseudoephedrine.
The police were informed and, in March 2009, carried out a training session at Mr Cave’s store. He professed surprise when told that toluene could be used in the manufacture of methamphetamine. He was provided with a pack of information and agreed to assist the police in future surveillance of his store.
Later in 2009, police undertook covert surveillance of the front and rear doors of Mr Cave’s store for the purpose of identifying customers purchasing large quantities of toluene. A number of individuals were identified and, when the police operation terminated, search warrants were executed which established that a number of those individuals were involved in the manufacture of methamphetamine.
While surveillance was ongoing, the police deployed undercover officers to make toluene purchases from Mr Cave’s store. They were fitted with listening devices which enabled the conversations to be recorded. After several visits, one of the undercover officers discussed purchasing six 20-litre containers of toluene. In the course of the discussion, Mr Cave indicated that he could buy 10 20-litre containers but that he could not order 10 at once as it would look “a bit dodgy”. The officer took delivery of one of the containers.
The second undercover officer went to the shop a few weeks later, introducing himself as a friend of the first undercover officer. They discussed the collection of the 10 containers. He took one that day and it was agreed that the remainder would be picked up near closing time the following day from the rear of the shop. When he arrived he paid the agreed purchase price and was told by Mr Cave that the labels had been removed from the containers.
Following termination of the operation and execution of search warrants, Mr Cave’s business premises and home were searched. The police found 275 grams of cannabis in a container in the wardrobe of his bedroom.
The trial
Mr Cave stood trial on 13 counts. Two were representative charges of manufacturing methamphetamine. The Crown case was that, by supplying toluene knowing it would be used in the manufacture of methamphetamine, Mr Cave was a party to the offence of manufacturing. He was acquitted of a representative charge relating to the period 1 January 2002 and 14 July 2009 and found guilty of a charge of manufacturing methamphetamine between 15 July 2009 and 8 December 2009. The remaining methamphetamine charges were of supplying toluene on specific occasions knowing it would be used in the manufacture of methamphetamine and manufacturing methamphetamine using the toluene purchased. Four of the charges of supplying toluene arose from supply to the undercover officers.
Before trial there was a challenge to the admissibility of the evidence of conversations between Mr Cave and the two undercover officers. It was said that the evidence was obtained as a result of entrapment and encouragement by the officers; without obtaining an interception warrant, contrary to s 25 of the Misuse of Drugs Amendment Act 1978; and contrary to r 2 of the Chief Justice’s Practice Note on Police Questioning which requires the police to advise an accused of the right to silence and to obtain legal advice. Judge Cunningham rejected all grounds of the application. At the same time, she rejected an application to discharge Mr Cave on the charges of manufacturing methamphetamine on the ground that there was insufficient evidence to support a finding that Mr Cave knew that the persons to whom he sold toluene intended to use it to manufacture methamphetamine.
The trial commenced on 5 September 2011. On 8 September, part way through the prosecution case, the Crown applied for orders discharging Mr Cave on the four counts of supplying a precursor substance which arose from the supply to the undercover officers. As the undercover police officers were never going to manufacture methamphetamine, the Crown accepted that Mr Cave could not have had the requisite knowledge. On that basis, orders for discharge under s 347 of the Crimes Act 1961 were made on those charges.
Following that ruling, defence counsel (not Mr Krebs) applied to exclude the evidence of the undercover officers on the ground that its prejudicial effect would outweigh its probative value. However, the Judge accepted the Crown’s submission that the evidence was admissible as propensity evidence as tending to show Mr Cave’s state of mind at the time he was making sales of toluene from his shop.
The objection to the admissibility of the undercover officers’ evidence was renewed after trial. Defence counsel asked that convictions not be entered and applied for Mr Cave to be discharged on all counts on which he had been found guilty. Relying on Hamed v R, it was submitted that the video and photographic surveillance evidence and the evidence of the undercover officers was inadmissible.[1] The Judge ruled the evidence to be admissible and refused the application. For reasons which we need not go into, the application was not heard until 10 July 2012. This explains why this appeal was not heard until so long after the trial.
Conviction appeal
[1]Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.
Mr Krebs’ attack on the convictions focussed on the admissibility of the undercover officers’ evidence. He eschewed any challenge to the surveillance evidence and abandoned an argument that the Judge erred in her directions on the requirement for knowledge. He submitted that the undercover police officers were not entitled to enter Mr Cave’s shop for the purpose of obtaining incriminating evidence. Relying on Hamed, he said they did not have an implied licence to enter for that purpose. They were trespassers. He sought to distinguish Tararo v R,[2] which excuses from trespass anyone who approaches a dwelling house to speak to an occupier.
[2]Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.
Mr Krebs submitted the evidence should not, in any event, have been led once the counts relating to supply to the undercover officers were removed from the indictment. In the mistaken belief that the evidence of the undercover officers had already been given at that point, he said the Judge should have declared a mistrial. However, his point remained that the evidence was inadmissible as of no relevance to the remaining charges. He said it could not have assisted the jury to determine the crucial question of whether Mr Cave had knowledge of the ultimate use to which the toluene purchased was to be put.
Mr Krebs argued that the conviction for possession for supply of cannabis was unsafe because it occurred in the context of a trial in which inadmissible and highly prejudicial evidence was adduced.
In our view, the evidence of the undercover officers was not illegally or unfairly obtained. We are satisfied they had lawful authority to enter the shop for the purpose of making purchases of toluene and to record the conversations which took place. There is nothing in Hamed to preclude such a finding and no reason to distinguish Tararo.
Any person has an implied licence to enter a retail shop for the purpose of making a purchase or simply to examine the goods on offer. There is no reason to qualify the right so as to exclude a police officer who is contemplating making an enquiry or a purchase for evidential purposes. Entry for that purpose is on all fours with the use of the implied licence to go to the door of a private residence for law enforcement purposes.[3]
[3]Tararo at [14].
Nor is there any reason why the use of a recording device should deprive the police officer of the licence to enter the premises. As was noted in Tararo,[4] in R v Barlow this Court held that a “participant recording” was not inherently unreasonable when its purpose was to obtain a full and accurate record of what was said.[5] In Tararo the Court saw no difference in principle between a concealed microphone and a concealed video camera.[6] There can be no objection to the use of a device which will provide reliable evidence of a conversation in which Mr Cave was a willing participant and of which the undercover officers are entitled to give evidence.[7]
[4]At [17].
[5]R v Barlow (1995) 14 CRNZ 9 (CA) at 40.
[6]At [18].
[7]See, in particular, the passage from Lopez v United States 373 US 427 (1963) at 439 quoted in Tararo at [19].
As we have said, the question of whether Mr Cave knew that the toluene was being sold for use in manufacturing was the critical issue at trial. The Crown explicitly relied on the undercover officers’ evidence for this purpose. There was particular reliance on Mr Cave’s willingness to sell large quantities of the substance and to “de-label” the containers. The Crown also relied on references in recorded conversations to other substances used in the manufacture of methamphetamine.
In our view, the evidence was of direct relevance to the surviving methamphetamine charges and was plainly admissible, as the Judge ruled, as propensity evidence under s 43 of the Evidence Act 2006. The dealings with the undercover officers took place over the same general time period as the specific instances of supply relied on. There were clear similarities in the way in which the trades occurred and there were unusual features present such as delivery being effected from the rear of the premises and the removal of labels from the containers sold to the second undercover officer. The evidence was plainly of high probative value.
Of course, the evidence had the potential to prejudice the accused if improperly used. It was necessary for the Judge to give directions to ensure that the evidence of the undercover officers was not used for illegitimate purposes. She was assiduous to do so. She emphasised, for example, that the jury must take care not to assume that any knowledge Mr Cave had of the ultimate use to which the toluene was being put in the latter half of 2009 was knowledge he had during the 2002 to mid-2009 period. It is not without significance that Mr Cave was acquitted on the representative count relating to the earlier period.
We are satisfied that there are no grounds to disturb the methamphetamine convictions. In those circumstances, it is not contended that the cannabis conviction is unsafe.
Sentence appeal
In sentencing Mr Cave, the Judge considered first into which band the offending fell under R v Fatu.[8]She was told that an ESR scientist had calculated the toluene supplied by Mr Cave would have yielded between 6.6 and 7.8 kilograms of methamphetamine. Making allowance for the uncertainties associated with such a projection, the Crown plumped for a starting point of around 13 years, placing the offending at the top of band 3 or the bottom of band 4 of Fatu. The Judge noted that this assumed a quantity of 500 grams, or less than 10 per cent of the bottom yield of methamphetamine projected.
[8]R v Fatu [2006] 2 NZLR 72 (CA).
The Judge compared Mr Cave’s actions to those of the pharmacist in R v Pulman who had sold pseudoephedrine for the purpose of manufacture into methamphetamine.[9] A starting point for sentence of 10 years was adopted in that case. Judge Cunningham took the view that toluene does not rank as highly, in terms of seriousness, as pseudoephedrine, the base ingredient used for the manufacture of methamphetamine. She also noted that, unlike the offender in Pulman, Mr Cave sold the toluene openly and at normal retail prices. She concluded, as suggested by the Crown, that an end sentence of five years fairly reflected Mr Cave’s culpability.
[9]R v Pulman HC Auckland CRI-2007-057-2376, 27 August 2010.
Mr Krebs submitted that both the starting point and final sentence were manifestly excessive. He argued that the Judge erred in having regard to the quantity of methamphetamine which could have been produced using the toluene sold. He argued that the circumstances of the offending in Pulman were a great deal more serious and the starting point adopted by Judge Cunningham gave insufficient recognition to the distinguishing factors.
In our view, the Judge applied Fatu sentencing principles fairly and appropriately to the unusual circumstances of the case. She fully appreciated that the projected yield should be no more than a starting point for sentencing purposes. Mr Cave’s secondary role was fully recognised. His culpability was fairly assessed by reference to the more serious offending in Pulman. While Mr Cave’s role was some distance removed from that of a principal offender who assembles the equipment and chemicals and produces the final product, it must be squarely confronted that his actions made possible the production of a large quantity of methamphetamine. We are satisfied that the sentence of five years imprisonment was comfortably within the available range.
Result
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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