Gush v The Queen - [2016] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

CA69/2016
[2016] NZCA 438

BETWEEN	HYLTON CHARLES GUSH Appellant
AND	THE QUEEN Respondent

Hearing:	29 August 2016
Court:	Wild, Courtney and Woodhouse JJ
Counsel:	C B Wilkinson-Smith for Appellant J E Mildenhall for Respondent
Judgment:	14 September 2016 at 3.30 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The application for leave to adduce fresh evidence is declined.

C The appeals against both conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Courtney J)

Following a retrial before Judge Morris and a jury in the Wellington District Court in September and October 2015 Hylton Charles Gush was convicted on charges of possessing methamphetamine for supply and benzylpiperazine (BZP) (a class C controlled drug) for sale. Judge Morris sentenced Mr Gush on those charges and on a third charge, possessing 1,4-butanediol (a class B controlled drug, known as BD or Fantasy) for supply,[1] to a total of three years and seven months’ imprisonment.[2] Mr Gush seeks an extension of time to appeal his conviction and sentence and seeks leave to adduce fresh evidence in support of the appeal against conviction, which relates to the methamphetamine charge only.
[1]Mr Gush had been convicted on this charge at the earlier trial before Judge Davidson in February 2015.
[2]R v Gush [2016] NZDC 389.
There was no objection to an extension of time being granted to bring the appeal and we extend time.
The grounds of the appeal against conviction are that the Judge erred in:
(a)admitting evidence from a police drug squad detective as expert evidence on the issue of the purity of the methamphetamine; and
(b)directing the jury on the issue of the purity of the methamphetamine.
The ground of the appeal against sentence is that the Judge wrongly treated the offending as falling within band two of R v Fatu.[3]

Nature of offending

[3]R v Fatu [2006] 2 NZLR 72 (CA) at [34(b)].

In June 2013 police executed a search warrant at Mr Gush’s home. On the top of the refrigerator in the kitchen officers found a white screw-top container that held several snaplock bags. One weighed 9.5 grams and the other 1.8 grams. The contents were tested and found to contain methamphetamine. Another bag was found to contain both methamphetamine and dimethylsulphone (MSM), which is commonly used as a cutting agent. A fourth bag contained only MSM.
In the kitchen pantry there was a four litre plastic container that held a clear liquid. This was tested and found to contain the class B drug 1,4-butanediol.
Inside a vehicle in the garage police found 11.5 purple pills in a white screw‑top plastic container. These were tested and found to be BZP.
Police also found numerous point bags, electronic scales registering weights up to a maximum of 50 grams and $5,530 in cash. In addition, Mr Gush had a CCTV camera set up to transmit images from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gush v The Queen

Details

AGLC: Gush v The Queen [2016] NZCA 438
Case: [2016] NZCA 438
Decision Date: 14 September 2016 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Hylton Charles Gush against his conviction and sentence, which followed his retrial and conviction for possessing methamphetamine for supply, benzylpiperazine for sale, and 1,4-butanediol for supply. The case was heard by Wild, Courtney, and Woodhouse JJ on 29 August 2016, with C B Wilkinson-Smith appearing for the appellant and J E Mildenhall for the respondent. The court granted the appellant an extension of time to appeal but dismissed the appeal against both conviction and sentence, and declined the application to adduce fresh evidence.

The appeal against conviction was based on two grounds: first, that the Judge erred in admitting evidence from a police drug squad detective on the purity of the methamphetamine; and second, that the Judge erred in directing the jury on the issue of purity. The appeal against sentence was based on the argument that the Judge wrongly treated the offending as falling within band two of R v Fatu. The court considered the evidence presented at trial, which included the discovery of various drugs, drug paraphernalia, and cash at the appellant’s home. The appellant denied any wrongdoing, claiming the drugs and cash were not his.

The court found that the evidence was both credible and fresh, but not cogent enough to affect the safety of the conviction. The court also found that the admission of the police detective’s evidence on purity was appropriate, as it was based on his experience and knowledge of drug dealing in the Wellington area. The court held that any error in the summing up did not pose a risk of miscarriage of justice. Regarding the sentence, the court found that the Judge’s decision to proceed on the basis of 50 per cent purity was justified, and the sentence of three years and seven months’ imprisonment was not manifestly excessive.

In summary, the Court of Appeal dismissed the appeal against both conviction and sentence, and declined the application to adduce fresh evidence. The appellant’s conviction and sentence were upheld, and no further orders were made.

Orders