Gilfedder v R
[2013] NZCA 426
•11 September 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA547/2012 [2013] NZCA 426 |
| BETWEEN | JOAN MARY GILFEDDER |
| AND | THE QUEEN |
| CA594/2012 | |
| BETWEEN | WATI HEEMI |
| AND | THE QUEEN |
| CA679/2012 | |
| BETWEEN | CHRISTINE GORDON |
| AND | THE QUEEN |
| Hearing: | 19 June 2013 |
Court: | Randerson, Courtney and Dobson JJ |
Counsel: | P L Borich for Gilfedder |
Judgment: | 11 September 2013 at 3:00pm |
JUDGMENT OF THE COURT
AMs Gilfedder’s appeal against conviction is dismissed.
BMs Gordon’s appeals against conviction and sentence are dismissed.
CMr Heemi’s appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
Table of Contents
| Para No | |
| Introduction Absence of propensity warning Ms Gordon’s appeal Absence of propensity warning Mr Heemi’s appeal Absence of propensity warning Alternative Crown response: reliance on post-conviction admissions | [1] [62] [134] |
Introduction
The present appellants were three of seven accused who were convicted after a jury trial before Woolford J in the High Court at Auckland that took some eight and a half weeks between April and June 2012. The indictment contained some 85 counts[1] relating to the manufacture and distribution of significant quantities of methamphetamine. The Crown case was that the most significant of the offenders, a Mr Van de Ven, arranged for acquisition of pre-cursor materials and supervised the manufacture of the methamphetamine with the participation of three others, on various of the occasions on which methamphetamine was manufactured. Mr Van de Ven then supplied the methamphetamine to four re-sellers of methamphetamine, each of whom was alleged to have a pattern of supplying methamphetamine to their own customers.
[1]Guilty verdicts were returned on all but one count which did not involve any of the present appellants.
Mr Van de Ven’s activities occurred at a residential property in Jupiter Street, Papakura and at another property at Hunua. The Crown case was that the re-sellers were supplied with methamphetamine at Jupiter Street.
Mr Heemi was one of those charged with participation in the manufacturing processes. He was convicted on three counts of manufacturing methamphetamine and sentenced to nine years and six months imprisonment. Mr Heemi has appealed both his convictions and sentence.
Ms Gilfedder was convicted on 12 counts of possession of methamphetamine for supply. She was sentenced to two and a half years imprisonment. She appeals against her convictions.
Ms Gordon was convicted on 14 counts of possession of methamphetamine for supply. She was sentenced to three years and six months imprisonment. Ms Gordon appeals against her convictions and sentence.[2]
[2]There is an outstanding appeal from a fourth person: Lorigan v R CA576/2012.
The movements of the accused had been monitored in a police operation between December 2009 and April 2010. Surveillance was maintained on Mr Van de Ven’s property in Jupiter Street and interception warrants were used to record text and call data from cell phones used by various of the accused.[3]
[3]In a pre-trial ruling, this Court dismissed an appeal in relation to the admissibility of evidence arising from the police surveillance: Lorigan v R [2012] NZCA 264.
At trial, physical evidence seized included pre-cursor materials and equipment used in the manufacture of methamphetamine found at the Hunua property, as well as pre-cursor chemicals and equipment, snaplock bags, cash and methamphetamine found at Jupiter Street. However, the preponderance of the Crown evidence comprised the records of the text and call data, together with a log of the frequent visitors to the Jupiter Street property. The text data was adduced by the Crown in 21 A3 sized booklets, mostly arranged chronologically but with divisions for the communications relied on in relation to counts for manufacturing, and sections for counts relating to charges of “distribution”. The text data was interspersed with chronological entries recording arrivals and departures from Jupiter Street.
The counts against Ms Gilfedder and Ms Gordon were structured in the indictment on the same basis, in that every charge of possession of methamphetamine for supply appeared immediately after a charge against Mr Van de Ven for supplying methamphetamine to the respective accused on the same date. The Crown case was something of a mosaic (and described as such by Crown counsel), with components of the evidence seeking to establish Mr Van de Ven’s part in successive manufactures of methamphetamine, related to a pattern of supply of the drug by him to his “distributors”. The jury convicted Mr Van de Ven of supplying methamphetamine to each of Ms Gilfedder and Ms Gordon on each of the occasions where they faced companion charges of being in possession of the drug for the purposes of supply.[4] Mr Van de Ven has not appealed against his convictions.
[4]The companion nature of the sequential counts was reflected in the terms of the question trail provided to the jury by the Judge. An instance is quoted at [44] below.
During the trial, the Judge prepared a document described as “Summary of Crown Core Data”, and conferred with counsel about it before it was provided to the jury. It listed the principal references in the A3 booklets of evidence that related to each of the counts, together with a shorthand description of the events that were referred to.
Grounds of appeal
The grounds of appeal against conviction varied but each raised as a principal ground that a miscarriage occurred through lack of an adequate direction on the proper use of propensity evidence. Primarily, it was argued that there ought to have been a direction about evidence of visits by the appellants to the Jupiter Street address and communications between the appellants and Mr Van de Ven on occasions other than the particular days on which the Crown alleged the offending occurred.
In addition, each appellant raised grounds of appeal specific to their cases which we detail below.
The sentence appeals by Ms Gordon and Mr Heemi are advanced on the grounds that their sentences were manifestly excessive.
Ms Gilfedder’s appeal
Absence of propensity warning
Counsel’s submissions
For Ms Gilfedder, Mr Borich suggested that the A3 booklets of evidence had been prepared on behalf of the Crown at a point when additional charges (including representative charges) of possession for supply, or drug dealing other than the counts eventually faced by Ms Gilfedder, were included in the indictment. Mr Tantrum did not dispute this point.
Mr Borich accepted that the Crown’s circumstantial case against Ms Gilfedder legitimately included communications between her and other people, including Mr Van de Ven, on dates other than the 12 specific occasions in respect of which she faced charges. The content and context of cryptic or coded communications could be better understood by considering the whole sequence of such communications, rather than isolated exchanges on the dates to which charges related. Further, the relevance of her visits to Jupiter Street on the dates to which charges related was appropriately considered within the pattern of many more visits on other days. That pattern of visits was part of the circumstantial evidence.
However, Mr Borich argued that without an appropriate propensity warning, the jury could also use the ongoing pattern of communications, and frequency of other visits by Ms Gilfedder to Jupiter Street, for impermissible purposes. This arose because the jurors would be likely to reason that indications of Ms Gilfedder arranging to acquire methamphetamine and on-sell it on other occasions, as suggested by items in the intercepted communications, made it more likely that she was in possession of methamphetamine for the purposes of supply on the dates to which the specific counts related.
Similarly, that the frequency of her visits to Jupiter Street, when the evidence against Mr Van de Ven suggested ongoing dealing in methamphetamine, raised the prospect of impermissible reasoning that the overall pattern of behaviour made it more likely that Ms Gilfedder was acquiring methamphetamine from him on the dates to which the specific charges related.
Mr Borich relied on the analysis of the circumstances in which a direction on propensity evidence is required, as considered by the minority in Mahomed v R.[5]
[5]Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [91]–[95].
He characterised that analysis as requiring a direction in three circumstances:
(a)where the Crown is relying on propensity reasoning and in doing so is invoking ideas about coincidence or probability;
(b)where the evidence involves aspersions on the character of an accused in respects not directly associated with the alleged offending;
(c)where, without a direction, there will be a danger that the jury will not realise the relevance of the evidence in question, or there is some particular risk or unfair prejudice associated with the evidence.
Mr Borich accepted that (b) did not apply. Although the Crown had not advanced its case on the basis of coincidence reasoning as contemplated by (a), Mr Borich did not entirely discount implicit reliance on that form of reasoning. Mostly, however, he relied on (c), arguing that the evidence of a pattern of behaviour created a danger that the jury would not realise the limited respects in which it was appropriate for them to rely on it.
At trial, after the jury had retired, Mr Borich raised his concern at the absence of a propensity direction. The Judge rejected Mr Borich’s submission that any propensity direction to the jury was required. Mr Borich again relied on the absence of such a direction when making an application for a mistrial. The Judge dealt with his reasons for not addressing any propensity concern when rejecting Mr Borich’s application for a mistrial.[6]
[6]Ruling (No 12) of Woolford J on application for mistrial, 19 June 2012 at [21]–[22].
The Judge reasoned as follows:
A propensity direction is only required if the Crown is relying on propensity reasoning and in doing so is invoking ideas about coincidence and probability and/or the evidence involves aspersions on the character of an accused in respects not directly associated with the alleged offending. Neither situation is applicable here.
That analysis cited [91] of the minority judgment in Mahomed as authority for the proposition. Mr Borich submitted that the Judge’s rejection of his argument as to the need for a propensity direction relied on too narrow a reading of the minority judgment in Mahomed, as to the range of circumstances in which a propensity direction is required.
For the Crown, Mr Tantrum disputed that the pattern of behaviour in the communications between Ms Gilfedder and others, and the log of her visits to Jupiter Street, constituted propensity evidence. He submitted that the most important use of the evidence was to assist the jury in their attempts to interpret the meaning of vague and coded communications involving Ms Gilfedder that formed part of the direct evidence. Further, the evidence was probative of the fact that Ms Gilfedder was likely to have been the driver of the vehicle associated with her on those occasions when there was no visual confirmation that she was the driver. The Crown also drew links between the timing of visits allegedly made by Ms Gilfedder and text messages between her and her “customers”.
Mr Tantrum argued that this limited purpose for putting evidence of the whole pattern of communications and visits to the jury would readily be understood, and that there was no risk of unfair prejudice by virtue of the jury adopting impermissible reasoning in reliance on it.
Discussion
As to the range of circumstances in which a propensity ruling is or may be required, the two circumstances listed at [18(a)] and [18(b)] above are taken from [91] of the minority judgment in Mahomed on which the trial Judge relied.[7] That passage continued:[8]
… As well, a propensity evidence direction should be given where, without it, there is a danger that the jury will not realise the relevance of the evidence in question or there is some particular risk of unfair prejudice associated with the evidence.
[92] On the other hand, and as the corollary of what we have just said, where the evidence in question, although still falling within the Act’s “propensity evidence” definition, is not led primarily in reliance on coincidence or probability reasoning, a specific direction may well not be required.
[7]We note that the majority preferred to leave the question of jury directions in propensity cases for resolution in a future case.
[8]Mahomed v R, above n 5, at [91]–[92].
Accordingly, the third situation requiring a propensity direction, as posited by Mr Borich and set out in [18(c)] above, reflects the additional prospect suggested in the first part of this extract, without acknowledging the countervailing consideration in the second part of the extract. Taken together, those passages require a slightly different approach than arises in respect of evidence adduced in the situations addressed in [18(a)] and [18(b)].[9]
[9]See also Hannigan v R [2012] NZCA 133 at [17]–[22], the fact that a propensity direction was not required in that case was confirmed by the Supreme Court in Hannigan v R [2012] NZSC 43 at [2]; and Gash v R [2013] NZCA 309 at [13].
With evidence potentially falling within this category, the extent of an identifiable risk of unfair prejudice will need to be weighed in context, including the primary purpose for which the evidence was led. For instance, it may be that a focus on unrelated reasons for adducing the evidence, other than to invoke coincidence or probability reasoning, may be sufficient of itself to reduce the risk that the jury may impermissibly rely on such indirect evidence.
There was no suggestion that all the evidence of intercepted communications and the log of visits to the Jupiter Street property by the various accused should not have been put to the jury. It did have clear relevance in terms of the context in which particular dealings arose, and in aiding the jury’s interpretation of vague and coded messages in the intercepted communications. Therefore, although it is within the definition of propensity evidence under s 40 of the Evidence Act 2006, it was included primarily as circumstantial evidence or part of the factual matrix adduced to place the particular conduct that gave rise to the specific counts against Ms Gilfedder in a more understandable context. It was admissible as such.
Mr Borich raised a point that was somewhat tangential to this. During argument in the trial on a belated application for suppression of the identity of some of the accused, an issue was raised about potential prejudice from publicity in light of the severance of other counts, and the prospect of contaminating potential jurors in that case by their exposure to evidence in this trial. In that context, Crown counsel acknowledged the prospect that the outcome of this trial might have relevance as propensity evidence in any subsequent trial. Mr Borich referred to those acknowledgements. However, we are satisfied that the argument in that context does not affect the existence of any reliance by the Crown in this trial on coincidence-type reasoning.
But the absence of reliance on it as propensity evidence did not remove the need to consider whether it constituted propensity evidence within the residual category recognised by the minority in Mahomed for which a direction would be required if any particular risk of unfair prejudice arose.
The schedule of visitors to Jupiter Street cited the vehicle with which Ms Gilfedder was associated visiting the property 111 times in the relevant three month period. Originally, Ms Gilfedder was included in some 36 counts in a significantly larger indictment than the one on which the trial proceeded. Her involvement was reduced to 12 counts, with numerous other counts severed from the indictment and sent for separate trial in the Manukau District Court. This meant that the schedule included nearly 100 visits that did not specifically relate to any of the charges against her.
Similarly with the intercepted communications involving Ms Gilfedder, a significant number of them did not relate to the counts on which she went to trial. A large number of communications may have supported some of the severed counts, but remained in the evidence as context for the communications that were directly relevant to the counts that remained in the indictment.
We accept that the Judge’s analysis as to whether a propensity direction was required, as recorded in his reasons for dismissing the application for a mistrial, was undertaken on too narrow a basis. That is because it omitted any consideration of whether the jury may not have realised the limits on the legitimate relevance of the evidence, or of the need for a caution against the risk of unfair prejudice resulting from impermissible lines of reasoning.
The relative extent of direct and indirect evidence in relation to Ms Gilfedder’s communications and visits to Jupiter Street gave rise to a potential risk that the jury might embark on impermissible reasoning. The jury could reason that the number of visits Ms Gilfedder made to the Jupiter Street address, and the potentially incriminating content of communications on days other than those to which the charges against her related, made it more likely that she was going to the property to acquire methamphetamine on the charged days. Therefore the jury could have reasoned, in reliance on the volume of this indirect evidence, that the Crown had established that she was in possession of methamphetamine for the purposes of supply on the days to which the counts in the indictment related. Arguably, the jury should have been reminded that when considering the indirect evidence, they must not overlook the duty on the Crown to prove beyond reasonable doubt that she was in possession of methamphetamine for supply on the days to which the particular charges related. Further that they should not assume automatically that she was visiting the property on the charged days for the same incriminating purposes as visits on other days (if that was their conclusion).
However, the extent of this conceptual risk is lessened by the practicalities of the situation in which the jury would come to consider the counts against Ms Gilfedder. Each count against her was a companion to the count against Mr Van de Ven for supplying methamphetamine to her on the dates in question. The jury’s analysis of the elements of these counts against Mr Van de Ven required it to consider both sides of his supply transaction, because it was an element of the counts against Mr Van de Ven that he made the relevant supply of methamphetamine to Ms Gilfedder. Once satisfied that the elements of supply by him to her were established, the only additional element to be considered on the counts against Ms Gilfedder was the purpose for which she was in possession of the drug (that is, allegedly for supply).
The context in which the jury considered the counts against Ms Gilfedder significantly reduces the prospect of any risk that the jury would embark on impermissible reasoning. Once it was established that Ms Gilfedder had possession of methamphetamine on a given date, then the evidence of her purpose for doing so was within a relatively narrow compass. Generally, texts between her and third parties on or immediately after the dates of the alleged possession tended to establish that she was supplying something to other people. What those immediate arrangements related to, legitimately took colour from the ongoing sequence of her communications.
The Judge’s reasons for rejecting the need for a propensity direction included the fact that he had given the jury what he described as a strong direction about considering the evidence in relation to each charge separately. He had said:[10]
You should, of course, only have regard to the evidence which relates to each count when considering each of your verdicts. However, evidence which directly relates to one count may be indirectly relevant to another count because you are able to draw inferences from evidence on one count in relation to other counts. …
This had been a component of directing them on the requirement to consider each count against each of the accused separately. Again, conceptually, the large proportion of evidence unrelated to specific counts could give rise to a concern that this direction was not sufficient to manage the risk of impermissible reasoning by the jury. Jurors might appreciate the need to consider each count separately, but not recognise the flaw in relying on evidence of a course of conduct that was not the subject of a specific charge in reasoning that the indirectly relevant evidence established some elements of the conduct as charged.
[10]R v Lorigan HC Auckland CRI-2010-055-1742 (summing-up) at [37]–[39].
The practicalities of how the elements of the counts against Ms Gilfedder would be considered apply equally to address this conceptual concern. Once the jury were satisfied of the elements involved in Mr Van de Ven’s companion charges, then accepting a direction to consider each charge separately would focus the jury on the legitimate evidence as to the purpose of Ms Gilfedder’s possession of the drug.
Any propensity direction would have drawn the distinction between those parts of the evidence that related directly to each of the counts in the indictment against Ms Gilfedder on the one hand, and the remainder of the evidence that was indirectly relevant and admissible against her, on the other hand. That point was adequately covered in the Judge’s summing-up.[11] An appropriate propensity direction would also include a caution against the jury relying on the evidence of visits and communications on other days to reason that, because of those other activities, she must have been guilty of possession for supply on the days specified in the counts against her. It was no part of the Crown case that the jury should approach the evidence in this way, and there is some force in the Judge’s reasoning that the directions he gave were sufficient to warn the jury against such reasoning.
[11]Judge’s summing-up, above n 10 at [39].
We have had regard to the directions given to the jury, and the practicalities of the relatively confined context in which they would have come to consider the elements of each charge against Ms Gilfedder, and in particular whether her possession of methamphetamine was for the purposes of supply. We are satisfied that this was a situation to which the “corollary” to the third situation contemplated by the minority in Mahomed applied,[12] so that a propensity direction was not required.
[12]Mahomed v R, above n 5, at [92].
As the minority in Mohamed identified this was a case where the appellants’ conduct during the whole of the relevant period was “so closely connected to the core elements of the case against [the appellants] as to leave little scope for unfair prejudicial effect”.[13]
Particulars of offences required to be proven?
[13]See Mahomed v R, above n 5, at [90].
Mr Borich submitted that the Judge was wrong to direct the jury that they did not have to be satisfied that any methamphetamine Ms Gilfedder possessed, for the purposes of the discrete counts of possession of methamphetamine for supply, had been supplied to her by Mr Van de Ven. In his summing-up, the Judge undertook what Mr Borich criticised as an inappropriately academic analysis of the law on whether the jury had to be satisfied of a particular alleged in respect of a charge where it was not strictly an element of the offence involved.
Ms Gilfedder had not made a statement to the police and did not give evidence. Her defence included the argument that if, despite her general denial, the jury was satisfied she was in possession of methamphetamine on any particular occasion, then the Crown had been unable to remove a reasonable doubt that she had been supplied it by someone other than Mr Van de Ven. This aspect of her defence relied on the proposition that the Crown had to prove that the drug had been supplied by Mr Van de Ven.
In the indictment, and in the question trail given to the jury by the Judge after consultation with counsel, each of the charges against Ms Gilfedder appeared in sequence after a count alleging supply of methamphetamine by Mr Van de Ven to Ms Gilfedder. Mr Borich used as an example the question trail for counts 54 and 55 in the indictment, which set out the matters that were required to be proved by the Crown beyond reasonable doubt as follows:
(a) Count 54: Mr Van de Ven
(i) On 13 February 2010
(ii) Van de Ven supplied
(iii) Class A methamphetamine
(iv) To Ms Gilfedder.
(b) Count 55: Ms Gilfedder
(i) On 13 February 2010
(ii) Ms Gilfedder had in her possession
(iii) Class A methamphetamine
(iv) Supplied by Van de Ven.
In his summing-up, the Judge stated that the identity of the supplier to Ms Gilfedder did not have to be proven beyond reasonable doubt, for the counts against her. Having set that out as an element in the question trail (for instance in count 55 above), the Judge commented to the jury that, in charges of possession of methamphetamine for supply such as those which Ms Gilfedder faced, the proposition that the methamphetamine was supplied to her by Mr Van de Ven could be “put in brackets”.[14] This reflected the distinction the Judge drew between the necessary elements of the offence, and particulars of the Crown case as to how the offending occurred. The Judge observed:
Because the offence is having possession of methamphetamine not having possession of methamphetamine supplied by another named person. The particulars only indicate the likely origin of the methamphetamine.
[14]Judge’s summing-up, above n 10, at [70].
The Judge went on to say that this was only a technical issue in the circumstances since the Crown had never suggested that anyone other than Mr Van de Ven was the supplier and the question trail reflected that.
Mr Borich had relied on the ingredients in the question trail for his closing address. Accordingly, he complained that the approach adopted in the Judge’s summing-up unfairly undermined the basis on which he sought to raise a reasonable doubt with the jury.
As a matter of law, the Judge was correct in analysing the elements of the charges against Ms Gilfedder as excluding the identity of the person by whom the methamphetamine was supplied. It may well be that the Judge did not anticipate Mr Borich closing on the basis that the supplier of methamphetamine to Ms Gilfedder was an element of the offending that had to be proven beyond reasonable doubt.[15]
[15]In the Judge’s ruling on the application for mistrial, he observed that the possibility of methamphetamine being supplied to Ms Gilfedder by someone other than Mr Van de Ven was raised for the first time in Mr Borich’s closing address.
It would have been preferable for the Judge to make clear to counsel when discussing the question trail, the distinction he intended to draw between the elements of the offence and particulars as set out in the indictment. However, we are not satisfied that Ms Gilfedder’s rights to fair trial were compromised by the way in which the Judge addressed this point.
Further, in terms of the practical trial dynamic, each of the counts of possession for supply faced by Ms Gilfedder appeared in sequence in the indictment after the count alleging supply by Mr Van de Ven to Ms Gilfedder. In circumstances where Mr Van de Ven was convicted on each of those counts, and where no realistic prospect was introduced at any stage that anyone else supplied Ms Gilfedder, the Judge’s directions on this point did not compromise Ms Gilfedder’s rights to a fair trial.
“Remainder” (of any previous supply) should be expressly excluded
Next, Mr Borich submitted that the Judge ought to have directed the jury that, in order to convict, it had to be satisfied in respect of each count that the accused was in possession of methamphetamine that she had obtained that same day. Mr Borich submitted this direction was necessary to guard against the jury drawing the conclusion that Ms Gilfedder would still have been in possession of the residue or remainder of methamphetamine previously supplied to her as the drug that was in her possession on the relevant date (referred to by counsel as “the remainder argument”).
The Crown case was presented on the basis that the methamphetamine involved in each charge against Ms Gilfedder had been supplied to her that day, by Mr Van de Ven. This was in the context of evidence of ongoing dealings between Mr Van de Ven and the various accused, and the greater number of visits by Ms Gilfedder to the Jupiter Street property than the confined number of occasions on which she was charged with possession for supply. Mr Borich attributed an obligation to the Crown to prove that the methamphetamine to which a particular charge related had been supplied on that particular day, by evidence that excluded the prospect that methamphetamine was in Ms Gilfedder’s possession from a previous supply.
Accordingly, Mr Borich submitted that the Judge ought to have directed the jury that they could not rely on the prospect of methamphetamine that had been supplied on an earlier date as the basis for its findings on possession at a later date. Those alternative circumstances of supply would include the prospect of Ms Gilfedder continuing to have possession of methamphetamine that she had received on a previous occasion from Mr Van de Ven (such as a supply of the drug to which an earlier count in the indictment related).
Mr Borich advanced a subset of this argument in relation to count 76 in the indictment. On the date to which that count related, the surveillance log and texts suggested that Ms Gilfedder had made two visits to the Jupiter Street property, the first at 4 pm for a little more than an hour, and then at about 5.20 pm for a little less than 20 minutes. The Crown case, reflecting the coincidence between the time of visits and text messages, was that Mr Van de Ven supplied methamphetamine to Ms Gilfedder during the second visit. The Crown closed on that basis, and Mr Borich’s closing address relied on the Crown closing to argue that the count could not be made out if the jury was left with a reasonable doubt that any relevant supply had occurred at another time, including during the previous visit that afternoon.
In summing up, the Judge rejected Mr Borich’s submission to the jury, characterising it as requiring a specificity that was not necessary. On the Judge’s analysis, count 76 could have been made out, so long as the jury was satisfied that the supply occurred on one of the two visits on that particular afternoon.
After the Judge had concluded his summing-up, Mr Borich asked the Judge to revisit the way he had commented on count 76, and to confirm to the jury that the count was confined to a supply that had to have occurred on the second of the two visits on the date in question. Crown counsel accepted that the Judge’s characterisation had cast the issue more widely than the Crown case did, and that a correction might be necessary.
The Judge declined to re-open the issue with the jury. The point was raised again by Mr Borich in his application for a mistrial. In the Judge’s ruling dismissing that application, he confirmed his reasons for rejecting the criticism.[16] The Judge considered the scope of the count by reference to the elements alleged, which cited the date but not the time of the visit. Accordingly, he reasoned that the Crown could make out the charge if the jury was satisfied that Ms Gilfedder had received methamphetamine “on the first or second visit that day or both”.
[16] Ruling (No 12) of Woolford J, 19 June 2012 at [20].
In relation to count 76, the summary of Crown core data referred only to data in relation to Ms Gilfedder’s second visit to the Jupiter Street address on the day in question. In those circumstances, it was undesirable for the Judge to leave that count to the jury on a different basis from that on which both Crown and defence had closed their cases. As a matter of fairness of trial process, the defence closing ought, in circumstances such as this, to have been entitled to rely on the scope of the Crown case as it was put to the jury. It appears that on this count, the Crown had elected to close its case assuming the burden of proving the elements of the count against Ms Gilfedder with greater particularity than was required. The Judge’s direction to the jury was correct in law because his analysis matched the elements of the count, whereas the Crown closing added a layer of particularity, presumably to reflect the Crown’s perception of the evidence.
We are not persuaded there was any real risk of a miscarriage of justice arising in relation to count 76 given the evidence and the Crown’s reliance in closing on the second visit. As a matter of law, the jury was entitled to infer that supply occurred on either one of the two occasions on that date.
There can be no concern that the Judge’s treatment of count 76 would have left the jury with any wrong impression about the requirements for finding the elements proven on any other charges. Count 76 was the only one where Ms Gilfedder had made two potentially relevant visits to Jupiter Street on the date specified in one of the counts against her. On the date to which count 46 related, Ms Gilfedder’s vehicle also had made two visits to the property. On the first occasion, the vehicle left after two minutes, apparently because there was no one at home. There is no realistic possibility that a jury could reasonably have inferred that supply occurred until the second visit on that day.
More generally, there was no realistic prospect of confusion by the jury in attributing “remainder” methamphetamine to Ms Gilfedder, as the basis for finding any of the charges proven against her. The Judge did not need to direct them to exclude the prospect of any methamphetamine in her possession that was acquired at an earlier date. That conclusion follows inevitably from Mr Van de Ven’s convictions on the companion charges of supply to Ms Gilfedder on the days in question.
Defence not adequately put
Mr Borich also submitted that the Judge had failed adequately to put Ms Gilfedder’s defence to the jury in his summing-up. Limited examples were cited, beyond the criticisms of the treatment of count 76, and the other criticisms of the summing-up that we have already addressed. We have reviewed the whole of the Judge’s summing-up for balance and we are not satisfied that there was any lack of balance in the way in which Ms Gilfedder’s defence was left to the jury.
Mr Borich is correct in suggesting that more time was spent focusing on the Crown case than on the defence case, but that point cannot of itself make out a lack of balance. This was a case where the defence called no evidence, Ms Gilfedder had not made a statement and in most respects her defence was confined to testing the requirement on the Crown to prove what were contended for her to be the elements of each count, beyond reasonable doubt.
We are accordingly satisfied that none of the grounds of Ms Gilfedder’s appeal against conviction can succeed.
Ms Gordon’s appeal
Absence of propensity warning
On Ms Gordon’s behalf, Mr Juran challenged the absence of a propensity direction, adopting Mr Borich’s arguments on this ground of appeal.
Mr Tantrum’s response to the absence of a propensity direction in relation to Ms Gordon also adopted his submissions made in relation to Ms Gilfedder. In effect, Mr Tantrum argued that a propensity direction was not required where the primary purpose for the evidence was circumstantial, and the Judge had directed the jury to make separate decisions in relation to each count against each accused, on terms that the jury should have regard to all the evidence that directly related to that count against that accused.
The totality of evidence available to the jury in respect of Ms Gordon is comparable to the evidence in the Crown case against Ms Gilfedder. There was a substantial volume of intercepted communications, and observations of visits by Ms Gordon to the Jupiter Street address, that did not relate directly to any of the 14 counts she faced. It appears that Ms Gordon was having a personal relationship with Mr Van de Ven. That complicated somewhat the communications between them, but did not alter the need for an analysis of any risk of impermissible propensity reasoning.
The nature and extent of the indirectly relevant evidence raised the same conceptual risk as we recognised in Ms Gilfedder’s appeal. That is, that the scale of contact that might suggest dealing in methamphetamine throughout the duration of the police observations could lead the jury to reason that Ms Gordon must have been in possession of methamphetamine for supply on the specific dates to which the counts related, without being satisfied that all the necessary elements were made out in relation to the date in question.
As with Ms Gilfedder, we consider that the substantial extent of the indirect evidence in relation to Ms Gordon, when compared with the nature and extent of the direct evidence on each of the 14 counts she faced, brought the indirect evidence within the residual category contemplated by the minority of the Supreme Court in Mahomed. Accordingly, the same analysis as we undertook in Ms Gilfedder’s appeal is required to see whether the risk of prejudice from that indirect evidence in Ms Gordon’s case required a propensity direction to be given.
It was legitimate for the jury to take the indirect evidence into account as an aid to interpreting the vague and coded communications to which Ms Gordon was a party, and to identify her as the driver of a vehicle recorded by surveillance. The Crown case did not rely on the indirect evidence as propensity evidence in any explicit sense. Rather, the Crown case was that the whole course of conduct between Ms Gordon and Mr Van de Ven was relevant to understand the nature of the dealings between them.
There was a material difference between the indirect and the direct evidence that could have been drawn to the jury’s attention. The appropriate caution would have been in terms that the jury should not overlook the obligation on the Crown to prove to the required standard the elements of each count on the specific days in question and not to automatically assume Ms Gordon’s guilt from a more general reliance on indirect evidence of the extent of contacts and the tenor of dealings over the period.
The argument for such a direction only becomes valid if, in the particular circumstances of the counts Ms Gordon was facing, the absence of it created a material risk of the jury applying impermissible reasoning. We have assessed this ground of Ms Gordon’s appeal on the basis that, conceptually, that risk arose.
However, on thoroughly testing the practical prospects of that risk arising in the context in which the jury would be considering each of the counts against her, we are satisfied that there is no material risk of prejudice and therefore Ms Gordon cannot make out a material error by the Judge in not providing the propensity direction suggested. We are not persuaded there was any material risk of miscarriage through the absence of any such direction. As with Ms Gilfedder, each count against Ms Gordon was a “companion” to the other side of the supply transaction being Mr Van de Ven’s supply to her on the given dates. The evidence on the counts against Mr Van de Ven was strong, and included evidence that it was Ms Gordon (among others) who was supplied by him. The remaining discrete issue to be proven against Ms Gordon was that she took possession of methamphetamine for the purposes of supply. There are instances of communications relating to each count that suggested Ms Gordon was arranging supply of something. In the context of the totality of the evidence, a strong inference on each occasion arises that what was being supplied was methamphetamine. That arises without any risk of impermissible reasoning.
“Remainder” argument/lack of balance
Mr Juran also raised the so-called remainder argument, considered in the context of Ms Gilfedder’s appeal at [51]–[61] above. In addition, Mr Juran argued that the Judge’s summing-up lacked balance in that, in directing on inferences, the Judge used illustrations that were contended for by the Crown, but did not achieve balance by also citing at that point an alternative example of inferences that would be favourable to the defence.
As to the “remainder” argument, the reasons for rejecting it in Ms Gilfedder’s case also apply in relation to Ms Gordon. There was no realistic risk that the jury would find any particular count against her proven, in reliance on a finding that she was still in possession on the date in question of some part of methamphetamine supplied to her on a previous occasion. For at least a number of the counts, there was a pattern of communications between Ms Gordon and third parties suggesting, in effect, that she “didn’t have any” until, on the Crown case, Mr Van de Ven and others had completed a manufacture. That was then followed by Ms Gordon’s communications with third parties making cryptic arrangements for the supply of something.
As to the lack of balance argument, the Judge used an analysis of the evidence against Ms Gordon on counts 2, 4 and 6 to illustrate the extent to which evidence on one count, that was only indirectly relevant to another count, could be relied on by the jury to enable it to draw inferences. The Judge’s illustration used a number of text messages between a cell phone attributed to Ms Gordon, and a person identified as “Russell”. On their own, individual text messages might not have established an arrangement for Ms Gordon to supply methamphetamine but, in the context of the sequence of text communications, the Judge instanced the Crown analysis as suggesting that the jury could be satisfied that a particular transaction being referred to was for a supply of methamphetamine.
Mr Juran suggested that there was a lack of balance because his response on behalf of Ms Gordon to the Crown’s interpretation was not acknowledged at that point in the summing-up, and when the Judge returned to it in reviewing the case on her behalf, he did so relatively more cursorily.[17]
[17]Judge’s summing-up, above n 10, at [40]–[45], compared with [81]–[89].
We are not satisfied that there was any lack of balance in the way the Judge summed up the Crown and defence cases in respect of the counts against Ms Gordon. Mr Juran did not complain that any specific argument in her defence should have been raised, and was not. The summing-up may have taken more time reviewing the Crown case than her defence case, but where it was putting the Crown to proof, there may well not be more that could relevantly be said.
Ms Gordon’s appeal against conviction is dismissed.
Appeal against sentence
Woolford J sentenced Ms Gordon to three years and six months imprisonment on each count of possession for supply, to be served concurrently. She appealed against that sentence on the basis that the starting point was too high, as it was based on an incorrect calculation of the quantity of methamphetamine in her possession over the relevant period.
On 17 August 2012, a disputed facts hearing was held to determine the total quantity of methamphetamine that was in Ms Gordon’s possession for each of the 14 counts.
Section 24 of the Sentencing Act 2002 provides that where a disputed fact is aggravating, the Crown needs to prove it beyond reasonable doubt before it can be relied on in sentencing. In Ms Gordon’s case, the Crown’s estimation of the quantity of methamphetamine was an aggravating fact, as it was a greater amount than Ms Gordon had accepted she had in her possession. The Crown’s contention as to quantity would justify a greater sentence than would otherwise have been imposed.[18]
[18]Sentencing Act 2002, s 24(3).
The Crown claimed that for each count, Ms Gordon was in possession of between one and three grams of methamphetamine, estimating a total of 30 grams for the total of 14 counts. It relied on an established norm that commercial dealings occurred in minimum increments of one gram, and the fact that Ms Gordon would obtain methamphetamine for her own personal use and to sell to others.
Ms Gordon disputed that the amount she obtained on each occasion from Mr Van de Ven was as much as one gram. She argued that Mr Van de Ven would have been prepared to supply a smaller quantity to her due to their personal relationship. The Crown accepted that he may have been prepared to depart from the usual practice for Ms Gordon, but the evidence shows that he did not. Ms Gordon also claimed that some of her communications with others referred to the supply of cannabis, not methamphetamine, and so the transactions referred to in evidence could not be accepted as always referring to methamphetamine.
Woolford J found that the Crown had proved the quantity of 30 grams beyond reasonable doubt, due to the consistent pattern of on-supply as shown in the text messages. His Honour stated that although Ms Gordon may have been occasionally supplying cannabis, she only received methamphetamine from Mr Van de Ven. He reasoned that there was no evidence in the text messages, or on termination of the police surveillance, that Mr Van de Ven was dealing in cannabis on any scale. He sentenced Ms Gordon on the basis that she was in possession of two grams of methamphetamine in respect of 10 counts, three grams on three of the counts, and one gram on one of the counts, totalling approximately 30 grams.
Ms Gordon’s appeal against sentence is essentially a challenge to the Judge’s findings of fact, following the disputed facts hearing. Ms Gordon has not asked for a review of the factual findings of Woolford J, although the submissions in respect of this aspect of the appeal focus on the perceived errors in that decision. Ms Gordon does not contest the starting point of four years as being excessive for possession of 30 grams of methamphetamine, and instead claims that the starting point adopted was based on a quantity of methamphetamine which is greater than what was actually in her possession at the relevant times.
Mr Juran did not advance any persuasive reasons for challenging the findings made by the trial Judge at the disputed facts hearing. The Judge was conscious of the onus the Crown had to discharge, dealt with the evidence and available inferences in an appropriate way, and reached findings that were inarguably open to him on the evidence he had assessed in the disputed facts hearing. That was particularly so against the background of the lengthy trial he had presided over of Ms Gordon and her co-accused.
In terms of the sentence itself, a starting point of four years is consistent with the tariff decision of R v Fatu,[19] and sentencings for possession for supply of comparable quantities of methamphetamine. Band two of Fatu sets a range of three to nine years imprisonment for supplying commercial quantities between five and 250 grams. A starting point of four years is at the lower end of that range. It was chosen by Woolford J as being consistent with the four year starting point adopted for Ms Gilfedder who supplied a similar quantity of methamphetamine,[20] and consistent with comparable cases where the defendant was in possession of similar quantities.[21]
[19]R v Fatu [2006] 2 NZLR 72 (CA).
[20]R v Lorigan [2012] NZHC 2249.
[21]See, for example, R v Davey HC Auckland CRI-2010-090-833, 7 April 2011; R v Haira HC Rotorua CRI-2009-063-5871, 24 November 2011; R v Turner [2012] NZHC 855; and R v Bradley [2012] NZHC 848.
Once the findings on disputed facts are accepted, the starting point of four years imprisonment cannot be challenged. The discount of six months for mitigating factors is not challenged on appeal, and therefore the end sentence of three years and six months imprisonment is not manifestly excessive.
Accordingly, Ms Gordon’s appeal against sentence is dismissed.
Mr Heemi’s appeal
Absence of propensity warning
Mr Heemi faced three charges of manufacturing methamphetamine, respectively on 13–16 January, 2–8 February and 8–13 February 2010. The Crown’s case against him was presented with similar reliance on intercepted communications, and observations of a vehicle attributed to him visiting Mr Van de Ven’s property in Jupiter Street. In his case, the vehicle attribution data identified 63 visits to the Jupiter Street property. The Crown also contended that he was linked to the equipment used in the manufacture of methamphetamine by a fingerprint that was identified on a steam distiller at the Hunua property.
On one of the counts, where the Crown case was that manufacture of methamphetamine occurred at the Hunua property, signals to and from the cell phone allegedly being used by Mr Heemi at relevant times were relayed through the cell phone tower servicing the Hunua area.
Counsel’s submissions
On Mr Heemi’s behalf, Mrs Wilkinson-Smith raised the same criticism that was argued on behalf of Ms Gilfedder and Ms Gordon, to the effect that a direction was required, warning the jury not to place impermissible reliance on the contextual evidence of Mr Heemi’s pattern of visits to the Jupiter Street property at times other than the periods to which the three charges against him related. Mrs Wilkinson‑Smith argued that, in the absence of such a direction, there was a material risk that the jury would treat the Crown case as being bolstered by the pattern of visits to the property that was a critical location in many of the other counts in the indictment.
Mrs Wilkinson‑Smith also raised a second form of concern that she argued required a propensity direction. On her analysis, the Crown case in relation to one of the three counts against Mr Heemi was substantially stronger than on the others. She submitted that that characterisation was recognised by the Judge when sentencing Mr Heemi:[22]
[64[ In [Mr Heemi’s] case there was clear evidence in [the] intercepted communications of him [giving] detailed advice to Mr Van de Ven in relation to one of the instances of manufacturing for which he was found guilty. In relation to the other two charges, there is less direct evidence of [Mr Heemi’s] involvement although there is sufficient to support the jury’s verdicts. … There is no evidence of any financial gain to [Mr Heemi]. He was not found with any methamphetamine. He was not found with any chemicals or equipment and there was no evidence of illicit drugs or evidence of drug dealing at his home address on termination.
[22]R v Lorigan, above n 20.
Mrs Wilkinson‑Smith submitted that the disparity in the relative strength of the Crown case on the three charges gave rise to a risk of the jury “rolling up” the charges, by reasoning that the higher standard of proof achieved on one count allowed them to be satisfied that the requisite standard had also been reached in relation to other charges. The danger of this form of propensity reasoning was recognised by this Court in R v W.[23] In that case, the Court recognised the requirement in such cases for a direction that the jury was not to bolster the case on one charge by evidence which relates to another, or to reason that if an accused is guilty of one charge, then he must be guilty of another.[24]
[23]R v W [2005] 2 NZLR 307 (CA) at [16].
[24]At [18].
Mr Tantrum submitted that propensity directions were not required on either of the concerns that were raised on behalf of Mr Heemi. He submitted that although the evidence may be covered by the definition of propensity evidence in s 40, the Crown case against Mr Heemi did not rely on propensity reasoning and was not invoking notions of coincidence and probability. Instead, all of it amounted to contextual evidence, adduced primarily to establish Mr Heemi’s involvement in each of the three occasions of manufacturing methamphetamine. Mr Tantrum conceded that there were similarities between the nature of Mr Heemi’s involvement in each count, but the Crown did not seek to rely on them to bolster the Crown case on any of the charges.
Mr Tantrum likened the Crown’s case against Mr Heemi to the English decision in R v Wallace that was cited in Mahomed.[25] In Wallace, the defendant had been linked by circumstantial evidence to four similar robberies. The Crown case had not turned on whether the defendant had a propensity to commit such robberies, but rather the jury’s overall assessment of all the circumstances. By analogy here, it was submitted that all the contextual evidence was not adduced to suggest that Mr Heemi had a propensity to assist in the manufacture of methamphetamine in any particular way. Rather, it was to better inform the jury’s assessment of whether the evidence against Mr Heemi in relation to the three specific instances of manufacturing was sufficient to make out the elements of each count.
Discussion
[25]R v Wallace [2007] EWCA Crim 1760, [2008] 1 WLR 572 analysed in Mahomed v R, above n 5, at [85]–[89].
The contextual or indirectly relevant evidence in Mr Heemi’s case was much less than that in the cases of the other appellants. There was a similar type of coded language used in communications between Messrs Heemi and Van de Ven at the relevant times, but materially less of it. Mrs Wilkinson‑Smith did not raise a concern about any particular passages in the contextual evidence that might point to Mr Heemi’s involvement in manufacture of methamphetamine at times other than the periods to which the three charges against him related.
The three counts against Mr Heemi were within a shorter time frame, starting on 13 January 2010 and ending on 13 February 2010, with counts 41 and 42 being consecutive, from 2–8 February, and 8–13 February 2010.
The extent of indirectly relevant evidence on which the jury might rely in impermissible reasoning was therefore less than in the case of the other two appellants. The Crown case against Mr Heemi was that his involvement in three occasions of manufacturing methamphetamine constituted a course of conduct over the period of a month. It was no part of the Crown case that his conduct on one or more of those occasions gave rise to a propensity for him to be involved in manufacturing on other occasions, which the jury could be invited to treat as propensity evidence. Having regard to the shorter time period and the smaller number of counts, there was no material risk of the jury adopting impermissible reasoning in relation to evidence of Mr Heemi’s involvement on any one of the occasions as supporting his involvement on any of the others.
We have separately considered the second form of Mrs Wilkinson‑Smith’s propensity concerns. That is, the material difference in the relative strength of the Crown cases as between the three counts Mr Heemi was facing. Mrs Wilkinson‑Smith submitted that a direction along the following lines was required:
It would be wrong to bolster up the case on one charge by evidence which relates to another or to reason that if an accused is guilty of one charge then he must be guilty of another.
The Judge’s directions did include “… the strongest direction in this case, as a matter of law, that you must consider each count against each accused separately”. At that point, the Judge acknowledged that the jury could find a particular accused guilty of one or more but not all, and that they could convict one or more accused and acquit others. The jury were reminded that they were presiding over “90 separate trials”.
Mr Tantrum did not accept that the Crown case against Mr Heemi was materially stronger on count 42 than on either of the others that he faced.
Having reviewed the core elements of the Crown case in relation to each count, we are inclined to the view that the Crown case was certainly strongest on count 42, with discernibly less evidence going to Mr Heemi’s participation in the two earlier occasions of manufacturing methamphetamine. In the end, however, the Crown case on each of the counts was a strong one. It would have been a prudent caution to expand on the directions the Judge gave by explicitly warning them against bolstering their analysis of the evidence on one count by reference to their findings on another count. However, we are satisfied that in Mr Heemi’s circumstances there was no material risk of miscarriage arising from the absence of such a direction.
Inadequate parties direction
Mrs Wilkinson‑Smith submitted that there were material inadequacies in the Judge’s summing-up on the prospect of Mr Heemi’s liability as a party. In his summing-up, the Judge addressed the prospect that those charged with manufacturing methamphetamine might be liable either as a principal, or as a party to the offending. Having described for the jury in general terms the elements required to establish liability as a party under s 66(1) of the Crimes Act, the Judge identified the elements for party liability for the relevant offences in the following terms:[26]
… A party to the manufacture of methamphetamine on the other hand is one who provides an ingredient or equipment for the manufacture or helps or assists in sourcing such ingredients or equipment or who assists in setting up the clandestine laboratory or instructs another how to set it up or who gives advice to others as to how to go about it or even one who urges another person to get on with the work of manufacturing. They are all parties to the manufacture of methamphetamine if they have the requisite knowledge and intent relating to the manufacture.
[26]Judge’s summing-up, above n 10, at [96].
In the question trail, the elements required to be proven were set out as follows:
COUNT 15: MR VAN DE VEN AND [MR HEEMI]
Has the Crown proved, beyond reasonable doubt, that sometime between 13 January 2010 and 16 January 2010:
1. Methamphetamine was manufactured at an address in Auckland?
If yes – go to Question 2.
If no – find Mr Van de Ven and [Mr Heemi] not guilty.
Assessing the evidence separately for each accused
2. The accused was involved in the manufacturing process either by:
(a) actually manufacturing it, or
(b)assisting or supporting or encouraging one or both of the other two named persons to manufacture it.
If yes – go to Question 3.
If no – find the accused not guilty.
3.The accused knew and intended that methamphetamine would be manufactured?
If yes – find the accused guilty.
If no – find the accused not guilty.
Mrs Wilkinson‑Smith submitted that the summing-up was inadequate on the issue of party liability in that the directions given were an oversimplification of, and inadequately addressed, the elements of intention and the requirement for the Crown to prove that the offence was actually completed. She made this latter point with particular reference to the second relevant count where the manufacturing process was not conventionally successful in that the resulting product was “brown”. Mrs Wilkinson‑Smith submitted that the Judge ought to have recognised the prospect of the jury finding that that attempt to manufacture was unsuccessful, thereby requiring directions on the implications of that prospect on Mr Heemi’s liability as a party.
Mr Tantrum submitted that there was no realistic prospect of the jury entertaining a reasonable doubt on the point. The intercepted communications suggested that something in the manufacturing process had miscarried, but was then resolved. The Crown case was that both Messrs Van de Ven and Heemi were at the Hunua address on 6 and 7 February 2010 (that is, within the period to which the second of the two counts, count 41, related) and that on the evening of 7 February 2010, Mr Van de Ven began offering methamphetamine for sale, with references to it being “brown” but saleable.
Similarly, in respect of the last of the three counts against Mr Heemi, one of the intercepted communications included him giving advice to another person identified as “Dave”. Mr Heemi’s comments included “give it up mate, just be the dealer” which Mrs Wilkinson‑Smith suggested could raise the prospect for the jury to consider that “Dave’s” attempts to manufacture methamphetamine were unsuccessful.
Again, Mr Tantrum dismissed that as a realistic prospect when the evidence overall showed that Mr Van de Ven supplied substantial quantities of methamphetamine at the end of that manufacturing process. An alternative interpretation of the comment was that “Dave” was better at dealing than he was at manufacturing methamphetamine, but that could not give rise to an inference that the manufacturing on that occasion had been unsuccessful.
We are not satisfied that anything more was required in the Judge’s directions on party liability. The Judge left the jury with the terms of the question trail, and comments about it were entirely consistent with the elements required to be proven in the sequence of the questions as outlined in [106] above. The first of those questions required the jury to be satisfied that methamphetamine had been manufactured within the time period to which the count related. If the jury was considering Mr Heemi’s participation as a party, then they had to be satisfied of the elements in questions 2(b) and 3. Those directions sufficiently defined the elements required for liability as a party.
Unbalanced summing-up in relation to count 42
Mrs Wilkinson‑Smith made a further criticism of the Judge’s summing-up in relation to count 42, being the last of the three counts that Mr Heemi faced. She analysed a passage of five paragraphs in the Judge’s summing-up that addressed that count as reading more like Crown submissions than a summary of the Crown case, generating the risk that the jury would have interpreted that portion of the summing-up as an indication that the Judge agreed with, and supported, the Crown’s case on that count.
She submitted that such content rendered that part of his summing-up unacceptable, in reliance on this Court’s decision in R v Fa’apusa.[27] In that decision, the Court identified a significant imbalance in the Judge’s summing-up, which commented about the parties’ respective cases favourably to the Crown. Clearly, the judge must not act in a manner which reasonably gives rise to an impression that there is a lack of neutrality in the judge’s conduct of the trial.[28]
[27]R v Fa’apusa CA300/06, 13 December 2006.
[28]See, for example, R v H (2002) 19 CRNZ 518 (CA) cited in Beckham v R [2012] NZCA 290 at [71].
Mr Tantrum resisted any notion of imbalance, pointing to other passages of the summing-up that reviewed Mr Heemi’s case and left the issues relevant to count 42 fairly balanced for the jury. In addition, the Judge had given the standard general disclaimer that if the jury discerned him expressing any view concerning the facts that did not accord with their own, then they should disregard it. The Judge emphasised that factual findings were uniquely the province of the jury, in particular in relation to the interpretation of text messages and telephone calls.[29]
[29]See Judge’s summing-up, above n 10, at [8], [9] and [227].
Taken overall, we do not accept that there was a material lack of balance in the way in which the Judge left the competing cases on count 42 to the jury. The Judge’s summing-up reflected the Crown case on count 42 as being a strong one, but that is because it was. There was no material imbalance in the circumstances.
Accordingly, Mr Heemi’s appeal against conviction is dismissed.
Appeal against sentence
Woolford J sentenced Mr Heemi at the same time as Ms Gilfedder and three others on 31 August 2012. The sentencing occurred a week after the delivery of the Judge’s disputed facts judgment. In that, the Judge reviewed the Crown evidence on the quantities of methamphetamine that had been manufactured in relation to each of the counts on which Mr Heemi had been found guilty. The Judge was satisfied that the quantities relied on by the Crown were made out beyond reasonable doubt. These involved between 45 and 63 grams on count 15, and between 225 and 315 grams on each of counts 41 and 42.
At sentencing, the Judge adopted the lower end of those ranges of between 495 and 693 grams, and reflected a number of broadly comparable cases in fitting this level of manufacture in cases that applied the bands from R v Fatu.[30]
[30]R v Fatu, above n 19.
Given starting points for band 3 in Fatu of between 10 and 15 years, and in light of Mr Heemi’s “secondary role”, the Judge adopted a starting point of 11 years imprisonment. There were no aggravating features and mitigating features included Mr Heemi having been on restrictive bail terms for most of a lengthy period of remand and his genuine remorse and insight into the effect of his offending. Those mitigating factors led the Judge to deduct 18 months from the starting point, resulting in an end sentence of nine and a half years imprisonment.
Mrs Wilkinson‑Smith challenged the starting point as being too high, relative to Mr Heemi’s secondary or peripheral involvement. She invited analogy with the case of R v Hsu, in which the sentencing Judge had settled on band 2 of Fatu as appropriate for a brother of the principal offender who, whilst aware of the scale of commercial dealing, was only peripherally involved.[31]
[31]R v Hsu [2012] NZHC 931.
We are not persuaded that the Judge erred. As Mr Tantrum submitted, involvement in three episodes of manufacturing methamphetamine that yielded at least 495 grams could have attracted starting points closer to 15 years than 10 years, when the quantity involved is at the top of band 3. It was open to the Judge to find the lesser nature of Mr Heemi’s involvement being reflected in the lack of a commercial interest in selling the product, rather than the expertise he brought to the manufacturing enterprise. Given those circumstances, there can be no error in setting a starting point of 11 years imprisonment.
No challenge was raised to the extent of discount allowed and we are accordingly satisfied that the sentence was not manifestly excessive. Mr Heemi’s appeal against sentence is dismissed.
Alternative Crown response: reliance on post-conviction admissions
The Crown response to each appeal included an alternative proposition, arguing that none of the appeals should in any event be allowed, even if a material error was established, because of post-conviction admissions by each of the appellants. Given our views leading to the dismissal of each conviction appeal, it is strictly unnecessary to address the Crown’s alternative response. It is nonetheless appropriate to record the terms in which it was advanced, and an indication of our response to it.
Mr Tantrum relied on earlier decisions in R v Vaituliao and M (CA428/09) v R where appeals had been dismissed because of post-conviction acknowledgements of offending that were inconsistent with the positions that had been adopted by the respective appellants at trial.[32]
[32]R v Vaituliao [2007] NZCA 525; and M (CA428/09) v R [2010] NZCA 127.
In Ms Gilfedder’s case, she had admitted involvement in the offending in her interview with the writer of her pre-sentence report. The terms of acknowledgement provided by Ms Gilfedder tended to confirm that she had obtained methamphetamine from Mr Van de Ven, that she used very little herself and that she on-sold it for reward to five people.
Mr Borich distinguished the decisions in Vaituliao and M (CA428/09) v R because those cases involved a single instance of offending where the post-conviction admissions squarely contradicted the basis on which the charge had been defended. In contrast, here Ms Gilfedder had faced multiple counts and the statements attributed to her did not reflect a complete abandonment of her defence at trial in the same way.
In Ms Gordon’s case, the pre-sentence report writer recorded that whilst Ms Gordon did not accept that the summary of facts portrayed her actions correctly, she nevertheless accepted her responsibility in the matter and expressed remorse for her actions. That report stated that Ms Gordon had denied any financial motive for her offending, offered “stupidity” as a reason for being in the predicament she found herself in, and minimised her offending behaviour by stating that she was “mainly helping her friends out”.
In Mr Heemi’s case, an acknowledgement of responsibility for the offending was set out in the pre-sentence report prepared about him. The report writer attributed to Mr Heemi:
… for the current drug related matters, he acknowledges full responsibility for his actions. He said although he knew he was breaking the law, regardless he continued to offend. … He admits, people he knew purchased the drug as a result of his activity.
Mr Tantrum characterised Mr Heemi’s remorse at sentencing as “unqualified”. It was illustrated by the lyrics of a song he had written and which Mr Heemi read aloud in Court.
Accepting Mr Borich’s point that Ms Gilfedder’s post-conviction acknowledgements did not constitute an absolute contradiction of the basis on which she had defended all the counts, we would not be minded to treat hers as an appeal in which those statements precluded her running arguments on appeal of the type that she did. There was scope for some uncertainty as to the precise extent of the acknowledgements of offending recorded in the pre-sentence report.
The same point could be made, perhaps with more justification, in Ms Gordon’s case where the post-conviction acknowledgement was guarded, and incomplete. She positively disputed the summary of facts on which the Crown sought to have her sentenced.
Where there is any material doubt about the nature or extent of post-conviction admissions in cases like this, we would not be prepared to rely on them as a ground for resisting what was otherwise a justifiable appeal.
The position in relation to Mr Heemi may have been otherwise. He faced three counts, and there can be no suggestion that his subsequent acknowledgement of responsibility and expression of remorse did not extend to all three of those convictions. The Crown therefore had a stronger case for drawing an analogy with the decisions in Vaituliao and M (CA428/09) v R on his appeal. However, we do not need to reach a concluded view about it.
Summary
Ms Gilfedder’s appeal against conviction is dismissed.
Ms Gordon’s appeals against conviction and sentence are dismissed.
Mr Heemi’s appeals against conviction and sentence are dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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