De Soto v The Queen
[2018] NZCA 366
•13 September 2018 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA215/2018 [2018] NZCA 366 |
| BETWEEN | MIKE DE SOTO |
| AND | THE QUEEN |
| Hearing: | 23 July 2018 |
Court: | Gilbert, Courtney and Moore JJ |
Appearances: | I M Brookie and C G Farquhar for Appellant |
Judgment: | 13 September 2018 at 11.00 am |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
Following a trial by jury in the District Court at Auckland Mr De Soto was found guilty of importing a class B controlled drug in the form of 100 tablets of MDMA, also known as ecstasy.[1] Mr De Soto was convicted and sentenced by Judge M E Sharp to nine months’ home detention.[2] Mr De Soto appeals against both conviction and sentence.
[1]Misuse of Drugs Act 1975, s 6(1)(a).
[2]R v De Soto [2018] NZDC 9102.
The order for the drugs was placed using the internet. The trial issues were whether the Crown could prove that Mr De Soto placed the order and, if so, whether the Crown could exclude the reasonable possibility that Mr De Soto withdrew from the transaction in sufficient time before the drugs were shipped. Mr De Soto appeals again his conviction on the grounds the Judge made errors in directing the jury on the defence of withdrawal, both in her question trail and in her summing-up, resulting in a miscarriage of justice:
(a)the question trail was contrary to the “model direction” set out by the Supreme Court in Ashin v R,[3] was unclear, and unfairly favoured the Crown;
(b)the Judge improperly and unfairly made submissions on behalf of the Crown;
(c)the Judge made comments which undermined the defence on withdrawal, unfairly disposing the jury against him; and
(d)the Judge’s directions regarding the reliability of the evidence of withdrawal were confusing and imprecise.
[3]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493.
Mr De Soto appeals against his sentence arguing that the Judge wrongly failed to take account of his attempt to withdraw when assessing his culpability.
Facts
On 14 July 2015 a package was intercepted at the Auckland International Mail Centre. It was found to contain 100 tablets of MDMA. The package had been sent from The Netherlands. It was addressed to a “Ju Ling” at an address in Grey Lynn, Auckland. Mr De Soto lived at this address with others. Customs Officers searched the address under warrant and seized various electronic items from Mr De Soto’s bedroom, including a laptop.
The laptop was forensically examined. This revealed an electronic conversation between a purchaser using the name “shylobuckton” and the vendor calling himself/herself “The Blacklist”. The Blacklist used software which permitted him/her to publish websites and other services, including various black market sites, without revealing their location. These sites are part of the “Dark Web”.
Using bitcoin, shylobuckton purchased 100 tablets of MDMA from The Blacklist. The forensic analysis also revealed account information associated with the URL “bitnz.com” including the username shylobuckton and the email address de [email protected]. It was also discovered that various Google searches had been made from the laptop concerning the conversion of bitcoin to New Zealand dollars, the Dark Web and how to buy drugs online. Using the bitnz.com URL, shylobuckton made two bitcoin purchases on 15 June 2015. When deposits were made into a bitnz.com account the deposit form was completed in the name Mike De Soto.
The trial
Crown case
The Crown’s case was that Mr De Soto was the purchaser and importer of the drugs. It was he who bought the bitcoin and it was he who used the laptop to place the order. Of the five witnesses called by the Crown, one assumed particular prominence. This was a Customs Officer, Mr Gresty, who conducted the forensic analysis of the laptop. Mr Gresty gave evidence of the details of the electronic conversation between The Blacklist and shylobuckton. These are set out in table form below:
| Time/Date | Sender | Message |
| 10:35 pm, 19 June 2015 | shylobuckton | hey thanks for the quick reply…my only experience is with a few weed seeds and they werent any problem just hidden in a thick postcard thing, there was only ten though.. maybe two orders lots would be better because one might get through? or perhaps two might look more suspect.. anyway whatever you think is the best option..thanks again |
| 11:35 pm, 22 June 2015[4] | shylobuckton | hey there…any updates |
| 11:29 pm, 23 June 2015 | The Blacklist | Hey shylobuckton, Sorry, Yesterday I was unable to go online. But I discussed this order with my team and they say NZ is very tricky like AU. And if you want us this to ship, we have to put the risk on your site. So we can ship you 100X at once or 2 x 50X 4 days apart but if it does not arrive we can only refund you 25% (0.2741 BTC) or reship you 1 time, but only 25 XTC. If you don’t agree we will reimburse you the full amount of course. |
| 1:19 am, 24 June 2015 | shylobuckton | could you please refund me |
| 5:17 am, 25 June 2015 | shylobuckton | could you please refund me |
| 11:42 pm, 25 June 2015 | The Blacklist | OMG I never got a message back from packing so I did respond to you. I have it shipped 22/6 but I am verifying with him if he indeed shipped it because I left it up to them. I will have an answer tomorrow and than you will know exact shipping date or I will refund you. Sorry!!! |
| 3:05 am, 26 June 2015 | shylobuckton | ok a bit more contact would be appreciated…have a few things riding on this |
| 10:14 pm, 28 June 2015 | The Blacklist | I know!!! It is like murphy’s law. I updated my browser and then I was unable to open it. It took our IT guy a couple of days to fix it. But the good news is: It was shipped on 23/6. Let’s hope it will arrive soon! |
[4]“shylobuckton” sent this message twice at 11.35 pm.
Defence case
Trial counsel, Mr Brookie, focused his cross-examination on the availability of the computer for use by others in the flat. The emphasis of his challenge was that the evidence did not establish it was Mr De Soto who ordered the tablets. Mr De Soto elected not to call evidence or give evidence on his own account.
The withdrawal issue
In her closing address, Crown counsel identified six strands of circumstantial evidence which she submitted, when considered together, proved Mr De Soto was the one who placed the order and was thus responsible for the importation of the drugs. She did not address the jury on the question of withdrawal.
Mr Brookie first raised the defence of withdrawal with the Judge in chambers following the Crown’s closing address. He provided the Judge with a copy of the Supreme Court’s decision in Ahsin and submitted that the defence of withdrawal was available on the record of communications between The Blacklist and shylobuckton and should be put to the jury.
In opposing this course, the Crown prosecutor submitted there was not a sufficient credible narrative to support the defence going to the jury. She submitted that the request for a refund was not timely and had not been communicated until after the drugs had been shipped, noting that the order was placed at sometime around 19 June 2017 and the message from shylobuckton seeking a refund was not sent until some five days later. She submitted that the request for a refund was not a reasonable and proportionate step to support the defence. The Judge disagreed and directed that the defence should be put to the jury.
Mr Brookie therefore focused on two defences in his closing address: that the evidence did not establish it was Mr De Soto who ordered the tablets; and whoever placed the order withdrew at a time when it was reasonably possible that cancellation of the order would be effective.
Mr Brookie also submitted that the actual timing of the dispatch of the drugs assumed no significance because it was information not known to shylobuckton at the time and the message from The Blacklist advising that the package was shipped on 22 June 2017 was hearsay and could not be relied on.
The summing-up and question trail
This late development complicated what until then had been a simple case of identity. It placed the Judge in the difficult position of having to formulate four further questions for the question trail and substantially re-write her summing‑up at very short notice.
Prior to summing-up the Judge distributed a draft question trail and invited comments from counsel. The question trail contained nine questions. The first five related to the essential elements of the offence of importing. They were uncontroversial. The remaining questions broadly reflected the four components of the defence of withdrawal set out in Ahsin:[5]
[5]Ahsin v R, above n 3, at [140].
Withdrawal
6.Has the Crown satisfied you beyond reasonable doubt that when he emailed the Blacklist on 24 June 2015 and 25 June 2015 “could you please refund me”, Mike De Soto did not demonstrate clearly to the seller of the pills that he was cancelling his order before the offence was committed?
If “yes” find Mike De Soto “guilty” and STOP.
If “no” go to question 7.
7.Has the Crown proved beyond reasonable doubt that Mike De Soto did not take steps to undo the effect of his previous involvement or to prevent the crime of importing a controlled drug?
If “yes” find Mike De Soto “guilty” and STOP.
If “no” go to question 8.
8.Has the Crown proved beyond reasonable doubt that Mike De Soto’s emails to the Blacklist asking for a refund were not steps that were reasonable and proportionate having regard to the nature and extent of his previous involvement in importing the pills?
If “yes” find Mike De Soto “guilty” and go to question 9.
If “no” find Mike De Soto “not guilty” and STOP.
9.Has the Crown proved beyond reasonable doubt that the steps taken by Mike De Soto were not timely (in the sense that he acted at a time when it was reasonably possible that he may be able either to undo the effect of his prior involvement or to prevent the crime)?
If “yes” find Mike De Soto “guilty” and STOP.
If “no” find Mike De Soto “not guilty” and STOP.
The Judge addressed the issue of withdrawal at some length in her summing‑up. Her directions, which are the main focus of this appeal, are discussed in more detail later.
Was the defence of withdrawal available?
Counsel agree that the defence of withdrawal is potentially available in drug importation cases and was appropriately put to the jury in this case. We agree. However, because there is no senior court authority confirming the availability of the defence in drug importation or exportation offending, we briefly set out our reasons.
In Ahsin the Supreme Court confirmed that withdrawal is a common law defence in respect of party offending under ss 66(1) and (2) of the Crimes Act 1961. The defence of withdrawal requires conduct that demonstrates withdrawal clearly to others, and which is reasonable and sufficient to undo the effect of the defendant’s previous participation or prevent the crime.[6] If the trial Judge is satisfied there is a sufficient evidential basis for both elements, that is a reasonable possibility, the jury will be directed on withdrawal and the defendant will only be criminally liable if it is proved beyond reasonable doubt that he or she had not withdrawn.[7]
[6]At [134].
[7]At [139].
There are strong public policy considerations which support the existence of the defence. These are the effect the availability of the defence may have in dissuading or frustrating a principal from offending, and the desirability that the law should encourage those participating in criminal activity to change their mind and take steps to prevent the crime being consummated.[8]
[8]At [122], citing David Lanham “Accomplices and Withdrawal” (1981) 97 LQR 575 at 579.
The availability of the defence in this context is not excluded by the plain wording of the legal elements as set out in Ahsin, and we consider the role of an importer in this context is sufficiently analogous to that of a party. Under s 6(1)(a) of the Misuse of Drugs Act 1975 the person who imports (or exports) a controlled drug is the principal. However, it is inherent in most importation arrangements that there is a co-offender operating in a foreign jurisdiction. It is a function of their being outside the jurisdiction that only the New Zealand importer is criminally liable. Despite this, the position of the importer is comparable to that of a party. The act of withdrawal may have the effect of frustrating the foreign exporter with the result that the crime of importation into this country is not completed. We consider it would be an overly technical approach to the principles of party liability if the defence of withdrawal was not available in these circumstances. Our approach accords with the policy considerations underpinning the availability of the defence.
There is some academic support for this conclusion.[9] The High Court of Australia dealt with a similar case but involving an innocent carrier. Gibbs J expressed the view that criminal liability may be extinguished where the recipient has given a sufficiently timely and unequivocal countermand that is sufficiently clear to bring it home to the mind of the agent that the recipient no longer desires the agent to do what had previously been agreed.[10]
[9]Its application in this context is implicit in the discussion found in Don Mathias (ed) Misuse of Drugs (online looseleaf ed, Thomson Reuters) at [3.13] and Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [MD6.03].
[10]White v Ridley [1978] HCA 38, (1978) 140 CLR 342. Gibbs J applied the well-known passage of Sloan J in R v Whitehouse [1941] 1 DLR 683 (BCCA) at 685, which was cited by the majority in Ahsin v R, above n 3, at [127].
We conclude that the defence of withdrawal may be available in cases such as the present and the Judge was correct to put the defence to the jury.
Ground 1 — question trail on withdrawal
Mr Brookie submits that the Judge was obliged to follow what he described as “the binding model direction” on the defence of withdrawal set out by the Supreme Court in Ahsin.[11] Mr Brookie’s criticism is that rather than directing the jury using open questions addressing the elements of withdrawal as framed by the Supreme Court, the Judge expressed the questions as requiring proof of a negative. So, for example, rather than asking was it “reasonably possible that the defendant demonstrated clearly, by words or actions, to the principal offender that he or she was withdrawing from the offending before the offence was committed?”, the Judge formulated the question this way — “Has the Crown satisfied you beyond reasonable doubt that when he emailed The Blacklist on 24 June 2015 and 25 June 2015 ‘could you please refund me’, Mike De Soto did not demonstrate clearly to the seller of the pills that he was cancelling his order before the offence was committed”.
[11]Ahsin v R, above n 3, at [140].
Mr Brookie submits that the questions were problematic because they would have led the jury to think that withdrawal had not occurred whereas the jury should have been focusing on whether it was reasonably possible it had. Mr Brookie also submits that the questions were difficult to follow and unfairly complicated the jury’s task. He observes that the Judge herself acknowledged in her summing‑up that such phraseology could be “extremely difficult” to follow.
The Supreme Court in Ahsin did not prescribe a “binding model direction” to be used in all cases where the defence of withdrawal must be considered by the jury. On the contrary, McGrath J, who gave the majority judgment, emphasised that trial judges will always be expected to frame the questions for the jury in a manner that reflects the circumstances and issues in the particular case.[12]
[12]At [140].
We accept that the questions could have been framed more simply but we are not persuaded that they were in error or that the jury would not have been able to understand them. As Mr Brookie acknowledges, the jury did not seek clarification of any issue arising out of the summing-up or the question trail. The Judge explained in her summing-up that she had formulated the questions in this way to make it clear to the jury that the onus was on the Crown to prove that Mr De Soto did not withdraw. Drafting the questions on withdrawal in this way meant that all questions in the question trail were consistent and appropriately focused the jury’s attention on the fact the Crown bore the onus of proof.
This ground of appeal fails.
Ground 2 — submissions on behalf of the Crown?
The Judge approached the first question on withdrawal, Question 6 in the question trail quoted at [15] above, by setting out what she described as the evidence the Crown relied on to disprove the defence. This approach provoked an interjection from Mr Brookie who, in the absence of the jury, signalled his concern that the Judge was interpolating what she assumed the Crown would have submitted but expressed it as if it had been submitted by the Crown when, in fact, the Crown had made no submission on withdrawal at all. He submitted the Judge was, in effect, making a closing address on the Crown’s behalf.
The Judge disagreed with Mr Brookie. She noted that the Crown had made no submissions because it was unaware the defence was being run. The jury returned and the Judge continued in the following way:
Members of the jury, you will probably want to know what that interruption was all about. That is because Mr Brookie reminds me that the Crown did not make any submissions to you in closing about the Defence. That is true, but it is only fair, given that the Defence was going to be run (and, I hasten to add that, the Defence has no obligation whatsoever to inform the Crown that it was going to run the Defence) but it is only fair that I give you as balanced a view as possible. I know that the Crown relies on various of the messages to indicate that there was no withdrawal. What you make of the messages and their reliability is a matter for you.
Mr Brookie notes that s 107 of the Criminal Procedure Act 2011 provides that the prosecutor has no right of reply. He submits that the Judge effectively gave the Crown a right of reply by purporting to summarise submissions it had not made on the issue of withdrawal. Mr Brookie contends that there was no need for the Judge to make these comments on behalf of the Crown because the defence was apparent from the Crown’s own evidence. This was therefore not an ambush by the defence but rather a miscalculation by the Crown. Mr Brookie also submits the Judge’s approach was unfair because it gave the Crown case a “judicial imprimatur” which would have elevated its importance in the eyes of the jury.
Mr Brookie relies on this Court’s decision in R v Molioo where an appeal against conviction was allowed because the trial Judge extensively questioned Mr Molioo after the completion of re-examination in a manner that would have conveyed the impression to the jury that the Judge did not believe him.[13]This Court found that the Judge had improperly “descended into the arena”, adopting the famous expression used by Lord Green MR in Yuill v Yuill.[14]
[13]R v Molioo [2008] NZCA 333 at [12].
[14]Yuill v Yuill [1945] 1 All ER 183 (CA) at 189.
The present case is far removed from that in Molioo. We agree with Mr Carruthers that no criticism can be made of the Judge in her attempt to balance the respective cases by identifying the evidence in favour of and against the defence of withdrawal. The need to ensure balance and fairness is a fundamental requirement of a Judge’s role. It does not operate solely for the benefit of the defence.[15] Fairness to the Crown is also required. As this Court said in Molioo, “[t]here is, of course, no problem with a Judge dealing with matters which arise out of the defence closing if it is necessary to do so in the interests of fairness”.[16]
[15]R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.
[16]R v Molioo, above n 13, at [14].
For these reasons, we reject this ground of appeal.
Ground 3 — defence undermined in summing up
Mr Brookie’s submission on this ground is focused on the passage of the Judge’s summing-up quoted at [29] above where she explained to the jury what the interruption was about. Mr Brookie submits that it was improper for the Judge to inform the jury of the reason for his objection. He argues that this would have conveyed the impression that defence counsel was trying to stop the Judge from relaying relevant and important information to them, namely the Crown position on withdrawal. Mr Brookie contends that this would have undermined the defence in the eyes of the jury and predisposed them against Mr De Soto. He claims that the position was made worse by the way the Judge dealt with the objection by suggesting that judicial intervention on behalf of the Crown was necessary to cure an unfairness created by the defence.
We are not persuaded that the Judge’s remarks undermined the defence or were unfair. The jury would have been wondering what the interruption was about and it was quite proper for the Judge to offer a brief explanation. The Judge did not in any way criticise Mr Brookie or undermine the defence in doing so. On the contrary, the Judge confirmed the correctness of Mr Brookie’s position and emphasised that the defence had no obligation whatsoever to inform the Crown that it was going to run the defence of withdrawal. The Judge was required to assist the jury by providing a balanced view of the issue based on the relevant evidence. Having done that, the Judge correctly emphasised that what the jury made of the emails and their reliability was for them to assess.
We are satisfied there is nothing in this ground of appeal.
Ground 4 —unclear/unfair directions regarding withdrawal and hearsay
The defence relied on shylobuckton’s emails seeking to cancel the order to support its defence of withdrawal whereas the Crown relied on The Blacklist’s emails to show that withdrawal was not timely. Mr Brookie submits that The Blacklist’s emails as to the time of shipment were hearsay. He contends that the Judge failed to draw this distinction and effectively warned the jury that all the email messages were unreliable. Mr Brookie also submits that because the Crown had the burden of disproving the defence, any unreliability in the evidence was to the detriment of the Crown’s case and this should have been made clear to the jury. He submits that these errors would have left the jury in a state of confusion about the parties’ respective cases and this resulted in a miscarriage of justice.
There was some legal discussion following Mr Brookie’s closing address, and immediately prior to the Judge’s summing-up, on the correct evidential status of the messages. It appears the agreed position was the messages were all admissible, and that the question of their reliability was a matter for the jury. Mr Brookie sought a direction in terms of s 122 of the Evidence Act on the email evidence indicating the date of shipment. His position was the messages from shylobuckton were more reliable than The Blacklist’s messages. The Judge decided to “give a warning” about the “computer analysis evidence” because it was “incomplete”. By the time of her summing-up, it appears the Judge considered the messages were admissible, and left the question of reliability to the jury’s consideration. Plainly she formed the view a firm s 122 direction was required.
The messages sent by The Blacklist to shylobuckton were hearsay.[17] The Blacklist was not a witness. Moreover, once the defence of withdrawal was raised a primary fact in issue was whether the withdrawal was timely. The Crown case relied on the messages to show the withdrawal was not timely, because the MDMA had already been shipped. As such the messages were offered to prove the truth of their contents.
[17]As for the messages sent by shylobuckton to The Blacklist, if the jury reached Question 6 in the question trail it must necessarily have been satisfied shylobuckton was Mr De Soto. Accordingly, the statements made by shylobuckton were admissible under s 27 of the Evidence Act 2006.
Hearsay statements are inadmissible unless their admissibility is otherwise provided for.[18] Determination of whether hearsay evidence is admissible is solely a matter for the Judge. If admitted, the function of weighing up the surrounding circumstances of the hearsay evidence and assessing its overall reliability passes to the jury,[19] although in appropriate cases judicial directions on unreliability may be required.[20]
[18]Evidence Act 2006, s 17.
[19]TK v R [2012] NZCA 185 at [23].
[20]Evidence Act 2006, s 122.
In our view, the messages from The Blacklist were admissible and properly put to the jury, under s 18 of the Evidence Act. Only threshold reliability, a “reasonable assurance”, is required under s 18(1)(a). In that regard we note that both The Blacklist and shylobuckton believed they were communicating using a secure and encrypted platform. Alternatively, the messages were admissible under s 22A (as a co-conspirator’s statement) because:
(a)there is reasonable evidence of the existence of a joint enterprise to import MDMA which Mr De Soto participated in, namely the forensic evidence of a purchase from Mr De Soto’s laptop of 100 MDMA tablets from The Blacklist, and the fact the drugs arrived; and
(b)the messages from The Blacklist are part of the natural process of making arrangements to carry out that joint enterprise.[21]
[21]Kayrouz v R [2014] NZCA 139 at [35], citing R v Platten [2006] EWCA Crim 140 (CA) at [35].
While the Judge did not explain her conclusion in these terms, it is evident from her discussion with counsel in chambers that she determined the statements were admissible.
Satisfied of this, the Judge was required to direct the jury that the weight they placed on the messages was for them. To the extent there were concerns about the reliability of the messages, cautioning in terms of s 122 of the Evidence Act was available. We consider the Judge discharged this obligation. As the following passages from her summing-up demonstrate, the Judge cautioned the jury numerous times about placing too much weight on the messages sent by The Blacklist:
(a)Early in the summing-up the Judge observed:
[S]ome of the messages which are relied on by the Crown from The Blacklist, well we have no way of knowing who The Blacklist is and whether or not those messages are reliable as to dates, for example, dates of shipment. The problem with that sort of evidence, which we actually call hearsay (where there is nobody to come to say they are The Blacklist and they sent this message), is that the defence does not have the opportunity to cross-examine them about anything.
(b)Later, before commencing her directions on the defence of withdrawal, the Judge told the jury:
[I]t would probably be quite a big ask to rely on the dates that are included within those messages as to the dates of dispatch of the drugs themselves.
(c)The Judge also expressed doubt as to whether the dates the messages were sent could be relied on, reminding the jury:
[Y]ou only have a partial picture. Mr Gresty acknowledged that he could not say who the user of the computer was at any given time.
She pointed out Mr Gresty’s concession that the record of the messages might display the date on which the messages were viewed rather than sent.
(d)When the Judge turned to the issue of withdrawal she cautioned the jury about relying on the dates referred to by The Blacklist, the times at which the messages were sent and the general reliability of them:
But the Crown does rely on the lack of timeliness of the messages asking for a refund and that, in fact, it was almost too late because the drugs appeared to have been shipped. But, when I say that, I want you to remember that The Blacklist was not able to be cross-examined. It is hearsay evidence from The Blacklist. And we do not actually know when the drugs were shipped. You cannot rely on the dates that are given in there.
So, essentially, what you are left with is two messages from Shiloh Buckton that obviously if you have got to this stage you consider to be Mr de Soto, asking for refunds and they are in answer to The Blacklist saying on 23 June at 23.29 (if you can rely on the timings here, which you possibly cannot) … It is for you, looking at the messages that you can rely on, to determine what that message meant and whether he was, in fact, demonstrating clearly that he was cancelling his order.
(Emphasis added).
(e)In respect of Question 6 the Judge said:
The Defence says that the messages from Shiloh Buckton have a very obvious meaning; that it would be very hard to make anything of them but that, given the opportunity to cancel (which he was by The Blacklist, remembering of course that you may think you cannot attach too much weight to any hearsay messages from The Blacklist given that they have not been here in Court to be able to be cross‑examined so there is an inherent unreliability you might think about them) but that, given the invitation for a reimbursement of the full amount, Shiloh Buckton was pretty quick to come back with an answer, asking for a refund, and that was repeated again.
(f)In relation to the resolution of Question 8 the Judge directed the jury:
[Y]ou need to think about the course of the transaction between [The Blacklist and shylobuckton], the course of the messages, the course of the negotiations, if you like, and when and how the order was actually placed, the questions involving the placing of that order, when the order, if you consider there is sufficient evidence to determine this beyond reasonable doubt, when the order was actually placed. Whether it had any conditions attached to it and whether there was actually an invitation to Mr De Soto to be able to cancel if he was not happy with the conditions which appeared to have been placed on it by The Blacklist.
(g)Similarly, in relation to Question 9:
The position for the Defence is that Shiloh Buckton went back to The Blacklist within a couple of hours of the invitation to be reimbursed for the full amount, asking for a refund, and that it is pretty clear what was intended by Shiloh Buckton, what was being asked of her, what was being intended and that it was certainly timely.
(h)Then, before concluding, the Judge made two further comments about the reliability of the messages:
Of course, you have the exhibit, which is part of [Mr Gresty’s] exhibit 4, the document booklet, which contains part of the electronic forensic report that Mr Gresty carried out, made and, in particular, the series of messages that both the Crown and the Defence, as it turns out, rely on. The Crown relies on them to prove its case and the Defence relies on some from Shiloh Buckton and one from The Blacklist, albeit with that note of caution about reliability because it is hearsay evidence, about withdrawal.
And:
To finish on a note that, whilst I have given you some cautions about evidence that may not necessarily be reliable, I also want to leave you with the thought that circumstantial cases can prove guilt beyond reasonable doubt, provided that the inferences or conclusions that are drawn are appropriate ones and they are drawn from established facts.
As can be seen, the Judge repeatedly emphasised to the jury that they should take care before relying on the times and dates of the emails from The Blacklist when considering whether any withdrawal was timely. We do not accept that the jury would have been left in a state of confusion about the defence case on withdrawal. We are satisfied that there has been no miscarriage of justice arising out of the Judge’s directions on this aspect of the case. This ground of appeal also fails.
It follows that the appeal against conviction must be dismissed.
The sentencing appeal
Mr De Soto also appeals the sentence of nine months’ home detention imposed. Mr Brookie submitted the sentence imposed was manifestly excessive because the Judge failed to take into account an unsuccessful attempt by the appellant to withdraw from the importation as a mitigating feature. Considering this submission at sentencing, the Judge concluded:[22]
I must say that though the arguments are interesting, it seems to me that as a matter of law I am bound by the jury’s obvious rejection of the withdrawal defence. Whilst it does appear from the emails that I have seen that you did at least attempt to withdraw, I agree with the Crown that you do not appear to have done so because of any change of heart; your effort to withdraw was certainly not particularly extensive but most of all, I am concerned that when a jury has rejected a defence of withdrawal it would be wrong in law for me to now give credit for at least am attempt, especially when I do not find that it was engendered by any, shall we say, moral superiority.
[22]R v De Soto, above n 2, at [6].
In Ahsin the majority in the Supreme Court said:[23]
[A]pplication of the defence of withdrawal raises important questions of what should be required of a person in order to be absolved from criminal liability as a party once the conduct giving rise to his or her criminal liability is complete, but the offence has not yet been committed. What redemptive actions will be sufficient to excuse such a defendant from criminal responsibility? In answering this question it is to be borne in mind that where the requirements of the law for exculpation cannot be met, it will usually remain open for the Court to recognise actions by a party who repented as a mitigating factor in sentencing. There is, however, limited room to do so in cases of murder.
[23]Ahsin v R, above n 3, at [123].
The availability of a discount for an attempt to withdraw must turn on whether the attempt can be said to bear on the offender’s overall criminality or culpability. In this case, the Judge was correct that Mr De Soto’s attempt did not justify a discount. It cannot be inferred from the circumstances, and in particular the emails, that Mr De Soto sought to withdraw because he no longer wanted to commit the offence. The more natural inference is that any attempt to withdraw stemmed from the unexpected complication in the transaction, and last minute misgivings around the risk of detection. This is underlined by the fact that when advised the MDMA package had been shipped Mr De Soto’s response was equivocal. In those circumstances Mr De Soto’s attempt to withdraw does not cast his offending in a different light or depict a person who, to use the language of the majority in Ahsin, “repented”.
Accordingly, we do not consider there was an error in the sentence imposed.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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