Harding v The Queen
[2016] NZHC 1855
•10 August 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-088-003309 [2016] NZHC 1855
BETWEEN EVANDA HAYES HARDING
KIATA SONNY PENE CASEY REWHA TYSON HARDING Applicants
AND
THE QUEEN Respondent
Hearing: 25 and 26 July 2016 Appearances:
Maria Pecotic and Annabel Maxwell-Scott for Evanda Harding
Lucy Postlewaight for Kiata Pene
Nick Leader for Casey Rewha
Baden Meyer and Ted Faleauto for Tyson Harding
Michael Smith and Richard Annandale for the RespondentJudgment:
10 August 2016
JUDGMENT OF MOORE J [On s 147 applications]
This judgment was delivered by me on 10 August 2016 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
HARDING & ORS v THE QUEEN [2016] NZHC 1855 [10 August 2016]
Introduction
[1] The applicants each faced charges arising out of a large scale Police operation which investigated the activities of a number of people claimed to be part of a sophisticated methamphetamine manufacturing operation. Their trial commenced on
27 June 2016. The Crown’s evidence was mostly in the form of visual surveillance
and intercepted audio communications.
[2] Following the conclusion of the Crown’s case the defendants applied under s 147 of the Criminal Procedure Act 2011 (“the Act”) to be discharged on the grounds that a properly directed jury could not reasonably convict.1
[3] After hearing argument I allowed the application by Tyson Harding and discharged him on Charge 8. I also discharged Casey Rewha on Charge 7.
[4] I dismissed the balance of the applications.
[5] I advised counsel of my results decision but indicated reasons in writing would follow. I now give those reasons.
Background facts
[6] In the second half of 2014, the Police commenced an investigation into a methamphetamine manufacturing operation based in Northland. The primary focus was on the activities of Brownie Harding. But the investigation also examined the activities of a large number of others including members of his family, friends and acquaintances. The operation was codenamed Taskforce Easter.
[7] Taskforce Easter ran over several months from September to November 2014 and into December 2014. Of primary interest to the Police were the activities which took place in and around a house situated at 278 Taipuha Road, Waiotira (“the address”), a tiny rural community situated approximately 30 kilometres southwest of
Whangarei.
1 Criminal Procedure Act 2011, s 147(4)(c).
[8] The sophistication and extent of the Police’s investigation techniques increased as the surveillance progressed. Initially only a single remote video camera scanned one side of the house and property providing an oblique, but incomplete and distant view. This was improved by the later installation of a closer second camera which covered the driveway and the front of the house. During the period of the operation, four covert entries into the house were undertaken by members of the Special Tactical Group (“STG”). On 17 October 2014 a listening device was installed inside the house. Additionally, warrants were obtained authorising the interception of private communications on a large number of mobile telephones.
[9] The information obtained from these devices revealed that over the period in question six separate and discrete phases of manufacturing took place. These involved various combinations of manufacturers or “cooks”. The phases were:
(a) 23 September 2014 to 26 September 2014; (b) 30 September 2014 to 1 October 2014;
(c) 8 October 2014 to 9 October 2014;
(d) 20 October 2014 to 23 October 2014;
(e) 28 October 2014 to 31 October 2014; and
(f) 6 November 2014 to 14 November 2014.
[10] Each of the manufacturing phases involved different combinations of cooks. Initially it was just Brownie Harding and another, but by the time of the last manufacturing phase in November 2014 at least four cooks were involved simultaneously. It is apparent from the audio intercepts that methamphetamine was being manufactured in batches. Pseudoephedrine was extracted from ContacNT by some cooks while, at the same time, others were engaged in producing methamphetamine in the reaction stage of the manufacturing process. For example during the last phase of manufacturing in November 2014, a combination of at least four cooks worked continuously producing a quantity of 2.204 kilograms of
methamphetamine in packaged and usable form which was then taken from the address back to the Harding’s home in Raumaunga, Whangarei (“the home”) and then transported south to Auckland. However, the car carrying the methamphetamine was stopped by the Police just north of the Harbour Bridge. The occupants of the car were Evanda Harding, Tyson Harding and Evanda Harding’s girlfriend. Evanda Harding and Tyson Harding are the sons of Brownie Harding. Evanda and Tyson Harding were arrested and charged with possession of methamphetamine for supply. They were later bailed.
[11] Oblivious to the fact that the drugs had been intercepted, the manufacturing process continued at the address over the balance of the afternoon of 14 November
2014 with a further 30 ounces (or 840 grams) of methamphetamine being produced. This, however, was the last manufacture to take place. Once it became known that Evanda and Tyson Harding had been arrested, immediate, albeit hasty and incomplete, steps were taken to clean up the address to remove evidence of the manufacturing which had taken place there over the previous months.
[12] On 16 December 2014 Taskforce Easter was terminated with the simultaneous arrest of a large number of those who were observed to be involved, directly and indirectly, in the methamphetamine manufacturing and distribution operation. These included Brownie Harding, various cooks, individuals heard or observed on the surveillance to be assisting and those involved in transporting precursor substances as well as the finished product. Those charged with assisting as secondary parties were alleged to have undertaken a variety of roles including as drivers, co-ordinators, deliverers of ice and LPG bottles, custodians of illicit funds and the like.
[13] Nine of those originally charged pleaded guilty to offences including the manufacture of methamphetamine, possession of methamphetamine for supply, supplying pseudoephedrine and participating in an organised criminal group. Certificates of conviction for those defendants who pleaded guilty were produced at trial by the Crown to prove the fact of the convictions.
The charges
[14] When the trial commenced the charge list contained nine charges. Evanda Harding faced three charges of manufacturing methamphetamine, one charge of possessing methamphetamine for supply, two charges of possessing pseudoephedrine for supply and one charge of participating in an organised criminal group.
[15] Kiata Pene faced one charge of manufacturing methamphetamine and one charge of participating in an organised criminal group.
[16] Casey Rewha faced one charge of conspiring with Brownie Harding to supply methamphetamine to an unknown person and one charge of participating in an organised criminal group.
[17] Tyson Harding faced one charge, laid jointly with Evanda Harding, of possession of methamphetamine for supply.
[18] On arraignment Evanda Harding pleaded guilty before the jury to the two charges of possession of pseudoephedrine for supply and to the charge of possessing methamphetamine for supply.
The applications
[19] Evanda Harding brought applications for dismissal in respect of the manufacturing charges (1, 4 and 6).
[20] Kiata Pene brought applications for dismissal in respect of all charges.
[21] Casey Rewha brought an application for dismissal in respect of Charge 7, which alleged she conspired with Brownie Harding to supply methamphetamine to an unknown person.
[22] Tyson Harding brought an application for dismissal in respect of Charge 8, which alleged that he, together with Evanda Harding, possessed methamphetamine for supply.
Legal principles – s 147 applications
[23] Section 147 of the Act reads:
147 Dismissal of charge
(1) The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(2) The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.
(3) A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.
(4) Without limiting subsection (1), the court may dismiss a charge if—
(a) the prosecutor has not offered evidence at trial; or
(b) in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or
(c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
(5) A decision to dismiss a charge must be given in open court. (6) If a charge is dismissed under this section the defendant is
deemed to be acquitted on that charge.
(7) Nothing in this section affects the power of the court to convict and discharge any person.
[24] Each applicant applied under s 147(4)(c), which requires a Judge to be satisfied that, as a matter of law, a properly directed jury could not reasonably convict. The power to dismiss a charge for lack of evidence was previously found in s 347 of the Crimes Act 1961. The case law decided under that provision remains applicable.
[25] The Court of Appeal described the test in the following way in R v Flyger:2
The power to discharge an accused, accorded by s 347(3) of the Crimes Act
1961, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury's responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge's function in these circumstances is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.
[26] In Parris v Attorney General, the Court of Appeal added that:3
The test must be administered pre-trial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide.
[27] The Crown also drew the Court’s attention to the following passage from
R v Kinghorn in relation to inferences:4
The methodology involved in drawing an inference has never been better put than by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd:
‘Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’
The drawing of an inference is itself an exercise in fact finding. It is frequently strongly contested. To deal with such a critical contested fact at a sentencing hearing, rather than a disputed facts hearing, is inappropriate. It raises a danger that the usual criminal law safeguards will not be met. And routinely a judge may have to form his or her own impression of a witness or witnesses. An inference turns on all the available evidence.
2 R v Flyger [2001] 2 NZLR 721 (CA) at [13].
3 Parris v Attorney General [2004] 1 NZLR 519 (CA) at [14].
4 R v Kinghorn [2014] NZCA 168 at [20] (footnote omitted).
[28] The Crown, correctly in my view, submitted that as inferences are exercises of fact finding, they should be left to the jury, provided they are reasonably available.
[29] I deal with each of these applications in turn.
Tyson Harding
Introduction
[30] The wording of the charge against Tyson Harding was that on 14 November
2014, with his brother Evanda, at Whangarei and elsewhere in New Zealand, he possessed methamphetamine for supply. This charge was founded on the circumstances which surrounded the stopping of the car on 14 November 2014 when the methamphetamine was found.
[31] On 15 December 2015 I heard a pre-trial s 147 application advanced on
Tyson Harding’s behalf. The grounds were similar to the present application. On
18 December 2015 I declined the application.5
Background facts
[32] Tyson Harding is the older brother of Evanda Harding. His father is Brownie
Harding and his mother is Casey Rewha.
[33] Throughout the day of 13 November 2014, through the following night and into 14 November 2014, the defendants Jaydean Hura, Elijah Rogers, Anthony Mangu and Mark Lang were actively involved in manufacturing serial batches of methamphetamine at the address. From the intercepted communications it was apparent that the product being manufactured was intended to be transported to Auckland later in the day of 14 November 2014.
[34] Evanda Harding arrived at the address shortly before 4:00 am on
14 November 2014. At that time the manufacturing process was, and had been for several days before, in full swing. Although his exact participation and involvement
5 R v Harding & Ors [2015] NZHC 3326.
in the manufacturing operation at that time is unclear, it is plain that Evanda Harding was present and probably actively participating in the manufacturing process.
[35] Shortly before 10:00 am on 14 November 2014, Evanda Harding left the address driving a Honda. About an hour later he returned in the same car, this time driven by Tyson Harding. Evanda Harding went inside and minutes later Tyson Harding drove away from the address alone. Evanda Harding remained in the house.
[36] About 40 minutes later Tyson Harding returned in the Honda. He waited in the car. After about 25 minutes Evanda Harding walked from the front door carrying what appeared to be a PAK’nSAVE shopping bag. He placed the bag in the front passenger seat area of the Honda, got into the front passenger seat and the brothers drove away back to their home in Whangarei.
[37] At this time Brownie Harding was serving a sentence of home detention and was confined to the family home in Whangarei.
[38] Not long after arriving home Evanda Harding was seen carrying a black sports bag from the house. He placed it in the rear foot well of a Mercedes Benz on the passenger’s side of the car. His girlfriend got into the back seat beside him. Tyson Harding got into the driver’s seat and the three drove away.
[39] They drove south and were stopped by the Police just north of the Harbour Bridge. By this time Evanda Harding was driving, Tyson Harding was seated in the front passenger seat and Evanda Harding’s girlfriend was seated in the back.
[40] The Police found the sports bag in the same position Evanda Harding had placed it earlier. It was examined and found to contain 80 ounce bags of methamphetamine.
[41] When interviewed both young men denied any knowledge of the contents of the bag.
[42] It is apparent from the intercepted communications between Brownie
Harding, Casey Rewha and Evanda Harding that the initial plan was for Evanda
Harding to take the drugs to Auckland himself. However, his driver’s licence was suspended a day or earlier and so Brownie Harding cast around for alternative drivers. He turned to Casey Rewha who, after an equivocal indication of willingness, declined to assist and suggested he ask Jasmine Green to undertake the role.
[43] A suggestion was made by Brownie Harding that Tyson Harding might be used to drive the car. This suggestion was strongly rejected by Casey Rewha. There were several conversations around this issue during which it became obvious that Casey Rewha was staunchly opposed to Tyson Harding being involved in any form.
[44] Significantly, Tyson Harding never featured as a participant in any of the intercepted communications, whether audio communications, telephone conversations or text messages.
[45] While it is correct he visited the property on a number of occasions prior to
14 November 2014 there is no evidence he ever entered the house or, at any stage, was active as a participant, either directly or indirectly in the methamphetamine manufacturing operation being undertaken at the address.
What amounts to possession in a joint context?
[46] The key question is whether Tyson Harding had actual or potential control of the methamphetamine and an intention to exercise that control.
[47] The leading case which sets out the requirements of control is R v Cox.6
There the Court of Appeal required that there be actual physical custody or control of the drug as well as a combination of knowledge and intention. The Court cited from the House of Lords:7
“In order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it.”
6 R v Cox [1990] 2 NZLR 275, (1990) 5 CRNZ 653 (CA).
7 R v Warner [1969] 2 AC 256 (HL) at 289, cited with approval at R v Cox, above n 6, at 278.
[48] These requirements have been summarised as:8
(a) knowledge of the presence of the drug; (b) a willingness to exercise control over it; (c) an intention to exercise control of it;
(d)knowledge on the part of the accused as to what the substance was (the accused must have been aware it was a controlled drug although he or she need not have known its exact chemical nature).
[49] In Wallace v R the Court of Appeal discussed “control”, in the context of an appeal brought on the basis that the appellant had never been in possession of a package containing methamphetamine which was intercepted by Customs because it was not in her control.9 The Court referred to the concept of “potential control” as persisting, and meaning a conditional control such as “where there is an existing ability and intention to control if certain circumstances arise”.10
[50] The concept of “potential control” was discussed by Tipping J in Smith v
Police.11 He questioned whether the notion was a helpful one, stating:
“You have control over something which is not in your actual custody if you have the ability to direct the custodian what was to be done with it. You may have that ability in conjunction with others.”
[51] He added:12
“If you do have that ability [the ability to direct the custodian what is to be done with the item] in the sense that the custodian will obey your direction you then have control. The direction may be to hand the thing to you or to deliver it to someone else, or to destroy or to do anything else with it.”
8 R v Paignton HC Hamilton T31/94, 3 February 1994.
9 Wallace v R [2015] NZCA 571.
10 At [11].
11 Smith v Police (1993) 11 CRNZ 294 (HC).
12 Smith v Police above n 11 at 295-296.
[52] In R v Cossey a Police officer observed one of four people throw a white plastic bag out of a car.13 One of the passengers acknowledged throwing cannabis out of the car. A variety of items consistent with dealing in cannabis were found in the car. A number of small plastic bags containing cannabis material were found on the side of the road. The Court of Appeal considered the other passengers’ appeals against conviction, particularly in relation to a number of jury questions on the
subject of control.
[53] Although lengthy, it is helpful to recite the Court of Appeal’s discussion of
what amounts to possession:
“… [the jury] came back with a question to the effect that assuming the criterion of knowledge has been satisfied, what factors would indicate control and they asked for an example relevant to this case. The Judge replied that proof was required not so much of control but the capacity to control, combined with the intention to exercise that degree of control. He emphasised that overt physical acts of control were not necessary:
‘But what the Crown does have to show are the circumstances as such that with that knowledge each party had capacity to do something with it.’
He said that on the Crown’s submission, that capacity was to take a bag out and participate in the selling operation, and that the combination of circumstances was such that the jury could conclude they intended to do just that. He declined to give specific examples, partly because he could not think of anything appropriate, but essentially because he said the case did not depend on overt acts of control, but upon the whole situation and background.
He went on to answer two additional questions put to him by the foreman after the exposition. The first correctly confirmed that a person must have the intention to exercise control. The second question was whether a person would be exercising control, even if unaware of the existence of the substance until the appearance of the Police, and then took some action to remove it. The Judge answered this question:
‘I would say yes’.
In view of the particular circumstances of this case and in spite of Mr Pyke’s submissions, we are not persuaded that was an appropriate answer without further explanation.
However, we accept that if the action by the imaginary person was simply to ensure that the substance did not fall into the hands of the Police, then the answer the Judge gave might have been appropriate. But in the context of this case his answer may have left the jury in some confusion about their
13 R v Cossey (1990) 6 CRNZ 185 (CA).
proper approach, particularly as the question seems to indicate that they were feeling some reservations about the Crown’s contention that this was a joint enterprise. This attitude seems to be borne out by the next question the jury asked some hours later at 2:30 pm, in the following terms:
‘A person who is driving a motor vehicle. That person knows that the vehicle contains an inanimate object. The person has no intention of touching that object or determining when it is removed from the vehicle. Is that person in possession? Does it make any difference if that person is also the owner?’
The Judge discussed this question with counsel and replied at some length, pointing out that knowledge of another’s possession of something in the car, without any intention of having anything to do with it, would not amount to possession by the driver, instancing the case of a lift given to a hitchhiker carrying a pack. On the other hand, agreement to transport an object without any intention to touch it could constitute a sufficient exercise of control in transporting it to make him a possessor, and he pointed out that this was one of the criteria relied on by the Crown.
We find some difficulty in following the answer, and it would appear that the Judge was making an attempt to bring the jury back to the thrust of the Crown’s case of this being a joint enterprise. However, having regard to the terms of this hypothetical question we think the answer should have been that the driver in those circumstances would not appear to be in possession, and nor were the owner. There are some relevant comments by the English Court of Appeal in Strong v Berry, a decision to which Mr Nordgren referred, reported in The Times of 26 January 1989, where the circumstances were similar to those under consideration here. It was said there that the accused:
‘… might not have known about the presence of the cannabis in the car – in other words, unless he was proved to have known about the cannabis – he could not be in joint control of it. It stood to reason that knowledge in such circumstances was a sine qua non of possession.’
However, even if he did (sic) about its presence, that was not enough. The mere fact that someone, for instance, had told him there was cannabis in the car would not be enough to saddle him with possession.”
[54] The Court of Appeal overturned the convictions since, in their view, a clear direction that mere knowledge of the existence of the white plastic bag was not enough and could well have resulted in acquitting one or both applicants.
[55] Cossey was followed in R v Yorston.14 There, a failure to sufficiently stress the necessary mental element, of intention to possess, in the jury directions rendered the verdicts unsafe.
[56] In R v Jury, the Court of Appeal said:15
Clearly where something is found in the common area of a house, occupied by more than one person, only those who intend to exercise possession of it can be liable, although others may know of its presence, and it was in a place where they could have exercised control over it. So where there is common or joint possession, proof of the intention to exercise control is required.
[57] By contrast, the Court of Appeal held that where the alleged possession was in the appellant’s room, which only she used and which had all her personal belongings in it:16
It was self evident that possession of methamphetamine in association with the appellant’s money and personal objectives carried with it not only the ability to exercise control, but implicitly the necessary intention to do so.
[58] This meant no specific direction to the jury was necessary.
[59] In R v Iese, the Court of Appeal made similar statements:17
[10] In a case in which the alleged possessor has physical custody or control, it may be possible to infer, indeed is sometimes self evident from the nature of that custody or control, that the person in question has the necessary knowledge and intention. But where, as here, immediate physical custody or control is in the hands of another person and the possession of the person in question is alleged to be jointly with that other person, the Crown must prove clearly that the alleged joint possessor has both knowledge of the other's possession and an intention to exercise custody of or control over the items in question in conjunction with that other.
[60] In that case the Court quashed the conviction of Mr Iese, who was jointly charged with his partner on possession of cannabis for supply . Mr Iese acknowledged he knew his partner had possession of the cannabis for sale. He
denied, however, that he had any such physical or mental links with the cannabis to
14 R v Yorston [2008] NZCA 285; for other judgments following R v Cossey, see R v Iese
CA188/03, 6 November 2003 and R v Jury [2009] NZCA 116.
15 R v Jury above n 14.
16 R v Jury above n 14 at [19] – [20].
17 R v Iese above n 14.
cause him to be in possession of it. The lack of direction on intent rendered the verdict unsafe.
[61] There are other examples which are consistent with these principles.18
[62] What emerges from these authorities is the principle that although a defendant may be aware of the existence of an item, that is not sufficient in itself. There must also be an associated intention to exercise control over it. Where one person has immediate physical custody and control of the product and another person is charged with joint possession, the Crown must prove clearly that the alleged joint possessor has both knowledge of the other’s possession and an intention to exercise custody of or control over the items in question in conjunction with that other.
Did Tyson Harding, as an alleged joint possessor, have both knowledge of Evanda Harding’s possession of the methamphetamine and an intention to exercise custody of or control over it in conjunction with Evanda Harding?
[63] Applying the test set out above, while I was satisfied there was sufficient evidence from which it might be inferred Tyson Harding knew his brother had the bag in the car and it contained drugs, the issue here is whether there is sufficient evidence of an intention on Tyson Harding’s part to exercise control over the bag and its contents. That at one point during the drive south he was the driver does not, in itself, provide sufficient evidence of an intention to exercise control.
[64] I am not satisfied there is sufficient evidence of an intention to exercise control on the part of Tyson Harding for this charge to go to the jury.
[65] A number of factors persuade me of this. They are:
(a) Assuming the PAK’nSAVE bag carried out of the address by Evanda
Harding contained the methamphetamine later found in the sports bag, it is apparent that at all times he kept it immediately adjacent to his
18 R v Chen [2014] NZHC 2916; Henwood v R [2014] NZCA 111; R v Larsen HC Hamilton CRI-
2007-019-9621, 25 March 2009; R v Bryden HC Auckland T44-87, 8 May 1987; Pue v R [2014] NZCA 273.
person. There is no evidence Tyson Harding ever had contact with or control over the bag or its contents.
(b) Evanda Harding was at the address from the early hours of
14 November 2014. The evidence indicates he was closely connected to the manufacturing process and, by inference, the preparation of the methamphetamine for transport. There is no evidence whatsoever linking Tyson Harding to these events.
(c) In the early hours of 14 November 2014 Evanda Harding drove to the address from his home. Later in the morning he returned home. Presumably he was prepared to risk driving contrary to his suspension on those limited occasions. However, he used Tyson Harding as his driver on the two subsequent occasions he returned to the address that day, underscoring Tyson Harding’s limited role as his driver.
(d)At the address, unlike Evanda Harding, there is no evidence Tyson Harding ever went inside the house, a factor which also emphasises that his limited role was as a driver for his brother.
(e) When Evanda Harding left the address he kept the PAK’nSAVE bag in his immediate physical possession. He placed it in the footwell of his seat, on the passenger side.
(f) When the brothers arrived home it was Evanda Harding who took the bag inside the house.
(g)When the brothers left their home it was Evanda Harding who carried the black sports bag from the house to the Mercedes and kept it in his immediate possession.
(h)A PAK’nSAVE bag, similar to the item which Evanda Harding carried from the address, was found in Evanda Harding’s bedroom at his home.
(i)Evanda Harding placed the black sports bag at his feet in the back seat of the Mercedes. Tyson Harding was seated in the front. He was the driver of the Mercedes.
(j)When the Mercedes was stopped by the Police the bag was still situated in the same position Evanda Harding originally had placed it when he left the home, although by that time he was driving.
(k)When the Mercedes was stopped by the Police Tyson Harding was still seated in the front, although by that time in the passenger’s seat. There is no evidence he was ever seated in the back area where the black sports bag was located.
(l)The intercepted communications make it clear that Casey Rewha was extremely reluctant to allow Tyson Harding to become involved and was plainly very angry when she learned he had been asked to drive the car to Auckland. This, and other evidence, indicates she was attempting to shield or quarantine Tyson Harding from these events.
(m)Prior to Evanda Harding’s licence being suspended, the intercepted communications indicate that the original plan was for Evanda Harding to deliver the drugs to Auckland either alone or with his father. Tyson Harding was not mentioned.
(n)Evanda Harding has pleaded guilty to this charge. He has also pleaded guilty to charges of possession of pseudoephedrine for supply. The pseudoephedrine he possessed was used for the manufacturing processes undertaken at the address. This emphasises Evanda Harding’s role in the operation was, amongst others, as the operation’s courier of drugs.
[66] The combination of evidential factors listed above was such that I was not satisfied there was sufficient evidence of an intention to exercise control by Tyson
Harding to allow this charge to go to the jury. Such a course would have been unsafe and any verdict of guilty would have amounted to a miscarriage of justice.
[67] I am conscious this course is contrary to my earlier decision of 18 December
2015. However, I have had the great advantage of actually hearing the intercepted communications and viewing the camera footage, a benefit which was not available to me at the earlier hearing. The combination of this evidence with the other material discussed has provided a context and dimension which I did not have when I considered the earlier application.
Result
[68] Accordingly I exercised my discretion to discharge Tyson Harding on this count.
Casey Rewha
Introduction
[69] Casey Rewha faced two charges:
(a) conspiring to supply methamphetamine; and
(b) participating in an organised criminal group.
[70] It is the first of these charges which was the subject of the application under s
147 of the Act.
[71] The charge read as follows:
The Crown Solicitor further charges that CASEY REWHA on or about between the 14th day of November 2014 in Northland conspired with Brownie Joseph Harding to supply a Class A Controlled Drug, namely Methamphetamine to an unknown person.
[72] Mr Leader, for Casey Rewha, submitted that the charge should be dismissed on the grounds that a properly directed jury could not reasonably convict.
[73] In order to convict Casey Rewha on this charge the jury needed to be sure that on or about 14 November 2014, in Northland:
(a) Casey Rewha entered into an agreement with Brownie Harding to supply methamphetamine to an unknown person; and
(b)she intended that the agreement to supply methamphetamine would be put into effect.
Background facts
[74] In the course of the last phase of methamphetamine manufacturing, particularly on 13 and 14 November 2014, the intercepted communications detailed discussions involving Evanda Harding about who would make the delivery of the finished product to Auckland. In the course of these discussions it emerged that, because Evanda Harding did not have a current driver’s licence, someone else would need to drive him, as discussed above in relation to Tyson Harding’s involvement.
[75] Later in the morning of 14 November 2014, Brownie Harding telephoned one of the cooks who was at the address requesting a progress report. In the course of that discussion Brownie Harding instructed the cook to give 80 to Evanda Harding and then he (Brownie Harding) would “get him on his way”. The reference to “80” was, almost certainly, a reference to the “80” ounces of methamphetamine which later that day was intercepted by the Police. Plainly, the plan was for Evanda Harding to be the courier and custodian of the methamphetamine. The difficulty, however, was that although Evanda Harding would be the custodian of the drugs a driver needed to be found to convey him to Auckland.
[76] Within minutes of speaking with the cook, Brownie Harding telephoned Casey Rewha. He told her that “that boy” (Evanda Harding) “was heading back”. In veiled language he asked her if she wanted to take Evanda down to Auckland. She responded by asking whether it was “… like a stay down there sort of gig or what?” Brownie Harding responded, “Well just get a room and … then wait there until he shoots over and then grabs them.” The reference to “he” was almost certainly a
reference to the person to whom the methamphetamine was to be delivered. Casey
Rewha responded, “Yeah, I s’pose.”
[77] Within eight minutes Casey Rewha telephoned Brownie Harding back and told him, “No I can’t do it. You’ll have to get Jasmine.” This was a reference to Jasmine Green, Brownie Harding’s partner.
[78] Although Mr Smith, for the Crown, submitted that the conspiracy was temporally broader, the only evidence of any agreement between Brownie Harding and Casey Rewha is the exchange between them when Casey Rewha responds, “Yeah, I s’pose.” The question for me was whether that response, in the context of the wider conversation, was sufficient to constitute a conspiracy between Brownie Harding and Casey Rewha to supply methamphetamine to the unknown person.
Did Casey Rewha conspire with Brownie Harding to supply methamphetamine to another?
[79] Mr Smith submitted that it was plain from the combination of intercepted communications that Casey Rewha knew that a quantity of methamphetamine was to be transported to Auckland and that there was a need to have someone drive Evanda Harding to Auckland with the drugs. He submitted the response, “Yeah, I s’pose.” was sufficient to found a charge of conspiracy even though Casey Rewha withdrew from the agreement shortly afterwards.
[80] The question for me was whether, in the circumstances, Casey Rewha’s response was sufficient to constitute an agreement for the purposes of a charge of conspiracy. What level of agreement was sufficient?
[81] The principles governing what amounts to a conspiracy are well settled. In R
v Morris (Lee) the Court of Appeal observed:19
“A conspiracy is a conscious common design of two or more persons to do an unlawful act or to do a lawful act by unlawful means (R v Humphries [1982] 1 NZLR 353 at p 356; Ahern v R (1988) 165 CLR 87 at p 93). As this Court said in R v Gemmell [1985] 2 NZLR 740 at p 743, it is of the essence of a conspiratorial agreement that there must be not only an
19 R v Morris (Lee) [2001] 3 NZLR 759 at [15].
intention to agree but also a common design to commit some offence, that is, to put the design into effect.”
[82] The crime of conspiracy is complete on completion of the agreement. Garrow and Turkington’s Criminal Law in New Zealand summarises the actus reas requirement in the following:20
“Mere intention is therefore insufficient. It is the plot itself which is at the heart of conspiracy which is the product of mutual consultation and agreement. The crime is complete when the agreement is made: Gemmell above, p 743 referring to Mulcahy v R (1868) LR 3 HL 306,
317 although it may continue until abandoned or its object completed: Sanders (above). In Walker [1962] Crim LR 458 mere negotiation was insufficient to found a conspiracy where the appellant, whose conviction was quashed, had withdrawn from further discussion, nor in Scott (1979) 68 Cr App R 164 (CA) was a secret uncommunicated intention to join once appropriate conditions emerged.”
[83] Thus Casey Rewha’s withdrawal minutes after saying, “Yeah, I ‘spose” would not affect the formation of the conspiracy if I was to find an agreement has been reached although it might have been relevant as to whether the requisite intention to supply methamphetamine was present.21
[84] Adams on Criminal Law states:22
“The essence of the offence of conspiracy is the agreement to commit a substantive offence. The agreement need not be carried to fruition, indeed no steps to implement it need be taken, but there must have been an intention that such steps would be taken. ….
A conspiracy is frequently stated to be complete on the making of the agreement to commit an offence, for example: R v Gemmell [1985] 2 NZLR
740, (1985) 1 CRNZ 496 (CA); R v Dillon [1956] NZLR 110 (CA); Mulcahy
v R (1868) LR 3 HL 306 (HL); Director of Public Prosecutions v Bhagwan [1972] AC 60 (HL). “Complete” in this sense means simply that all that is necessary for the offence has occurred. It does not mean that the offence is “completed” in the sense that it is over: R v Johnston (1986) 2 CRNZ 289 (CA), at 291, where it was said, at 290–291:
‘a conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in
20 Gary Turkington and Ian Murray (eds) Garrow and Turkington’s Criminal Law in New Zealand
(online looseleaf edition, LexisNexis) at [CRI310.4].
21 The use of the word “withdrawal” while connoting an assumption the agreement was reached is used in this context only to describe Casey Rewha’s subsequent express refusal to become involved.
22 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Westlaw) at [CA310.01 and
CA310.04].
existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged: R v Sanders [conspiracy] [1984] 1 NZLR 636; Director of Public Prosecutions v Doot [1973] AC 807.’”
What is the mental element?
[85] An authoritative statement on the elements of conspiracy is that of the Court of Appeal in R v Gemmell:23
“A criminal conspiracy … consists in an intention which is common to the minds of the conspirators and the manifestation of that intention by mutual consultation and agreement among them. It is of the essence of a conspiratorial agreement that there must be not only an intention to agree but also a common design to commit some offence, that is, to put the design into effect. ... To have the necessary knowledge for conspiracy a person must know what he is supposed to have agreed to do. That is to say there must be an intention to be a party to an agreement to commit the specific offence to which the conspiracy is directed: R v Churchill [1967] 2 AC 224, 237. However, he need not know that what he is alleged to have agreed to do is unlawful (ibid, 237). An apparent agreement which stops short of an intention to carry the offence through to completion is not enough. In R v O’Brien [1955] 2 DLR 311, a decision of the Supreme Court of Canada, it was contended that T, O’Brien’s co-conspirator, did not have any intention to carry through the common design and so could not be a party to the conspiracy. This submission was accepted by the majority of the Court. Taschereau J, one of the majority said:
‘I think there has been some confusion as to the element of intention which is necessary to constitute the offence. It is, of course, essential that the conspirators have the intention to agree, and this agreement must be complete. There must also be a common design to do something unlawful, or something lawful by illegal means. Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement. I cannot imagine several conspirators agreeing to defraud, to restrain trade, or to commit any indictable offence, without having the intention to reach the common goal.
The definition of conspiracy itself supposes an aim. People do not conspire unless they have an object in view. The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialised, and does not become harmful to any one. The intention must necessarily be present because it is the unlawful act necessarily flowing from the intention, that the state wishes to prevent” (ibid, 313-314).’
(original emphasis)
23 R v Gemmell [1985] 2 NZLR 740 (CA) at 743-745.
To return to the traditional nomenclature of the criminal law, the mens rea is the intention of the conspirator to achieve the common design and his mind must go with the apparent manifestation of his consent. The actus reus of the offence of conspiracy is the agreement which has a common design. The actus reus does not exist in mere formulation of an intention in the minds of two or more persons to commit a crime; there must be an agreement into which that intention is translated. The offence of conspiracy consists “not merely in the intention of two or more but in the agreement of two or more” (Mulcahy v R (1868) LR 3 HL 306, 317, emphasis added), and, as it was put in R v Meyrick (1929) 21 Cr App R 94, 101-102, the prosecution must establish not that the individuals are in direct communication with each other, or directly consulted together, but that they entered into an agreement with a common design. It is necessary only to add that because direct evidence of the making of the agreement and its nature or terms is rarely available, proof will almost always depend upon evidence of acts or declarations by persons alleged to be parties to the conspiracy or the inferences to be drawn from them. But we emphasise that it is not the acts which constitute the conspiracy; they are only the evidence from which the agreement may be inferred.”
[86] Woodhouse J reproduced this passage in its entirety in his judgment in R v Kitson.24 The Judge went on to dismiss conspiracy charges because there was insufficient evidence to show that, at the time of the alleged agreement, the accused had formed an intention to actually commit the object crime, being the manufacture of methamphetamine.
[87] Winkelmann J’s judgment in Sun v R is to similar effect.25 There the Judge said:
Further, there is no evidence capable of supporting the inference that Mr Sun intended to carry through the design, that he was committed or intended to see the methamphetamine manufactured. Evidence that he was supplying a pre-cursor substance, even if the supply was of an on-going basis, and in substantial quantities, is not enough. Although Mr Sun no doubt wanted to be paid for that supply, there is no evidence that links his ability to be paid, to the manufacture of methamphetamine, so in turn committing him to the achievement of the manufacture. If there had been an agreement that he was to be paid partly in methamphetamine, that would have provided some evidence of the necessary intention to see methamphetamine manufactured, but the evidence fell short of that.
…
The central issue therefore remains intention. It is not sufficient to show mere knowledge or even expectation or passive acquiescence in the manufacture. There must be an intention that the conspiracy be brought to fruition. In this case I am not satisfied that there is any evidence capable of
24 R v Kitson [2013] NZHC 2691.
25 Sun v R HC Auckland CRI-2006-004-3200, 22 September 2006.
supporting the inference that Mr Sun agreed to manufacture methamphetamine, or that he was committed to the manufacture taking place.
(Emphasis added)
[88] In R v Hansen Harrison J surveyed the authorities I have referred to and concluded that:26
“the Crown must prove that, first, each person intended to commit an offence; second, the intention is manifested in an agreement or accord to that effect; and, third, each intended to assist the other in taking a step in furtherance of the common design.”
[89] As can be seen, the authorities consistently disclose that to be guilty of a conspiracy the accused must actually intend that the conspiracy be brought to fruition.
[90] In my view, these authorities clearly support the dismissal of the charge on the basis that no jury, properly directed, could infer that Casey Rewha intended to actually commit the offence and to assist Brownie Harding in taking a step in furtherance of a common design.27
[91] Taking all the circumstances into account, the comment “Yeah, I ‘spose” followed a few minutes later by Casey Rewha’s withdrawal provides insufficient evidence (in fact evidence to the contrary) that Casey Rewha actually intended to see the conspiracy through to completion. That is fatal to the charge irrespective of whether there was sufficient evidence of an agreement between Casey Rewha and Brownie Harding that the former would transport the drugs. An apparent agreement which stops short of demonstrating an intention to carry out the offence through to
completion is not enough. That is the factual situation here.
26 R v Hansen HC Auckland CRI-2006-004-1208, 17 August 2007 at [10].
27 These same principles have been elucidated in several other cases. See for example R v
Tofaeono CRI-2008-004-7390, 15 December 2009 and R v Su HC Auckland CRI-2006-092-
16424, 10 July 2008.
Kiata Pene
Introduction
[92] Kiata Pene faced two charges; first, that between 20 and 23 October 2014, at Waiotira, he manufactured methamphetamine (jointly with Brownie Harding, Elijah Rogers, Jaydean Hura, Mark Lang, Anthony Mangu and others).
[93] Secondly, he was jointly charged with Evanda Harding and Casey Rewha that, between 23 September 2014 and 16 December 2014, at Whangarei and elsewhere in New Zealand he participated in an organised criminal group.
[94] Both charges relied on essentially the same factual basis, which the applicant submitted was insufficient in terms of s 147(4)(c).
Background facts
[95] The relevant manufacturing phase was the fourth of the six undertaken over the period of Taskforce Easter. The Crown did not claim Kiata Pene was a principal. Rather, it submitted he was a secondary party because he provided assistance knowing and intending that methamphetamine would be manufactured.
[96] The Crown claimed he provided assistance as Brownie Harding’s driver and the supplier of ice, gas bottles and other items which are generally understood to be associated with the reaction stage of the methamphetamine manufacturing process.
[97] The evidence revealed that Kiata Pene was an associate of Brownie Harding’s through their joint membership of the Headhunters. Photographs discovered during the Police searches at the termination of the operation depicted Brownie Harding standing next to Kiata Pene wearing Headhunters patches. The provenance of the photographs is unknown but they appeared to have been taken in Whangarei. Furthermore, clothing and other paraphernalia connected to the Headhunters was found at Kiata Pene’s address.
[98] The audio listening device was installed on 17 October 2014, just three days before the fourth phase of manufacturing is alleged to have started. During the
period of the fourth manufacture, the device recorded sounds and conversation within the house consistent with methamphetamine manufacture. References to what appeared to be toluene, caustic soda, methamphetamine, parr bombs and statistics around the quantity of material being processed and manufactured were overheard. Detective Sergeant Dunhill, the officer-in-charge of the case, gave his opinion that the intercepted communications revealed methamphetamine manufacture throughout that period.
[99] Furthermore, over the night of 16 and 17 October 2014, just a few days before phase four commenced, a covert entry of the address was made by STG officers. This showed a variety of items present at the address including distillers, reaction vessels, gas bottles and large containers of reagents and chemicals.
[100] Kiata Pene was first seen at the address on 24 September 2014, approximately a month before phase four of the manufacturing process commenced (outside the time period specified in charge 2). This was before the listening device was installed. It was also the day before the first covert entry by STG officers. The camera logs revealed that Kiata Pene drove Brownie Harding to the address. He was there for approximately 45 minutes. There is evidence he went inside. On this occasion Brownie Harding’s father, Joseph Harding, was seen mowing the lawns when the two men arrived. He left shortly afterwards.
[101] The Crown’s case was primarily focused on the days of 21 and 22 October
2014. On 20 October 2014, the noises and conversations picked up by the audio intercept revealed that those inside were talking about “multi-ounces”, “bombs away”, “using all the white”, “collecting the E” and “cozzeying stuff up”. From this, the Crown submitted that an inference could be drawn that from 20 October 2014 there was an active methamphetamine operation underway with all the smells, sights and activity which that kind of exercise involves.
[102] On the morning of 21 October 2014 Brownie Harding talked about “getting wax off”. He talked about “10 sets”; “rewatering”; “setting off bombs”; “cooking that off”. The Crown submitted this showed that methamphetamine was being produced that morning and throughout the fourth phase.
[103] It is against this background the Crown claimed Kiata Pene was positively identified at 4:15 pm on 21 October 2014 arriving in Brownie Harding’s black Ford Falcon. He carried water inside. He met Jaydean Hura, one of the active cooks, at the side door of the house and greeted him with an embrace.
[104] In the course of the Crown’s submissions Mr Smith played video footage which had been taken by members of the STG using high powered telescopic video equipment. This clearly showed Kiata Pene parking the Ford by the side door of the house. Brownie Harding got out of the passenger door and walked inside the address. Kiata Pene, not without some difficulty, pulled himself out of the car and walked gingerly around the front of the car where he met Jaydean Hura. Ms Postlewaight, for Kiata Pene, advised that at the time this footage was recorded, he was suffering from gout and was on medication for that condition. After embracing Jaydean Hura, Kiata Pene was seen to walk to the boot, remove a large bottle of water and walk inside. Jaydean Hura followed him carrying two large bottles of water. Kiata Pene was at the address for some hours most of which was spent inside.
[105] The following day, on 22 October 2014, Kiata Pene arrived at Brownie Harding’s home a little after 9:00 am. He then drove him out to the address. He was there only a few minutes. He loaded some LPG bottles into the Ford and left. Sometime later Brownie Harding left the address driving a Mazda. They obviously swapped vehicles at some point because Brownie Harding returned in the Ford and about 20 minutes later Kiata Pene returned in the Mazda. He removed three bags of ice from the car and took them inside.
Submissions
[106] Ms Postlewaight submitted that the earlier visit on 24 September 2014 added nothing to the assessment of intentional involvement as a secondary party. She submitted the Crown had not established that on 21 and 22 October 2014 manufacturing was actually taking place or whether the process was in a preparatory stage. She noted that the longest period Kiata Pene remained in the house was on the evening of 21 October 2014 and that the audio surveillance did not establish that
manufacturing was, in fact, occurring at that time. She submitted that at best, the intercepted communications were consistent with the extraction phase as distinct from the reaction phase where methamphetamine is produced.
[107] Furthermore, she submitted there was insufficient evidence to establish knowledge on the part of Kiata Pene. There was no evidence he had witnessed a manufacturing process, or even if he had seen equipment consistent with methamphetamine manufacture, would he have recognised it for what it was.
[108] She submitted that carrying various innocuous items into the address might well have been seen by Kiata Pene as household items needed by the residents. He simply helped by carrying them in as any visitor might.
[109] In relation to the events on 22 October 2014 when Kiata Pene was seen at different times handling LPG bottles and ice a similar submission was made. Any inferences as to knowledge or intent were speculative with a plethora of alternative inferences consistent with innocence were available.
[110] Ms Postlewaight also pointed out that there were no intercepted communications involving Kiata Pene. There were no fingerprints or other evidence tending to link or implicate him to the activities which took place inside the house.
[111] On the charge of participating in an organised criminal group, Ms Postlewaight submitted that for the reasons advanced in relation to the manufacturing charge, there was insufficient evidence of either the requisite knowledge or participation to support the charge.
Analysis
[112] For a charge of being a party to manufacturing, four essential elements require proof. These are:
(a) Was methamphetamine manufactured between 20 October and 23
October 2014?
(b)Did the defendant aid, abet, counsel or procure another defendant or defendants by words or conduct to manufacture methamphetamine?
(c) Did the defendant intend methamphetamine would be manufactured?
(d)Did the defendant know methamphetamine would be manufactured when he aided, abetted, counselled or procured the manufacturers?
[113] I deal with each of these elements in turn.
(a) Was methamphetamine manufactured between 20 October and 23 October
2014?
[114] The Crown produced certificates of conviction for those who had pleaded guilty to manufacturing during this phase. By virtue of s 49 of the Evidence Act
2006 such certificates are conclusive proof the person or persons named in the certificates committed the nominated offences. I did not understand Ms Postlewaight to submit this element was challenged.
(b) Did the defendant aid, abet, counsel or procure another defendant or defendants, by words or conduct, to manufacture methamphetamine?
[115] The driving of Brownie Harding to and from the address, the assistance in carrying in water, the provision of ice and LPG bottles is ample evidence of help or assistance to those involved in the manufacturing operation.
[116] Whether the provision of these materials assisted the principals to manufacture methamphetamine must also be considered under this head. I am satisfied this ingredient is present to the necessary level. Detective Sergeant Dunhill opined that methamphetamine was being produced throughout the period. That is consistent with the audio intercepts. When the assistance was provided by Kiata Pene a manufacturing process which led to the production of methamphetamine was both underway at that time and continued beyond that period. While it is possible, albeit in my view unlikely, that the manufacturing process had been completed before Kiata Pene provided the assistance, that is properly a matter left for the jury.
(c) Did the defendant intend methamphetamine would be manufactured?
[117] This element can only be proved by inference. Mr Smith submitted that Kiata Pene’s intention and knowledge could be inferred by the amount of time he spent in and around the address. He first visited a month earlier within a short time of the first covert entry. Mr Smith submitted that anyone entering that house could not have failed to realise what was going on.
[118] Then, on the afternoon of 21 October 2014, Kiata Pene returned to the address with Brownie Harding and carried the bottle or bottles of water inside with Jaydean Hura. Mr Smith submitted that given the evidence of manufacturing earlier that day and the day before it is simply not credible that any person entering the house and spending any time inside would not have recognised the operation as anything other than a methamphetamine manufacturing enterprise with all the activity, smells and conversation which the audio intercept revealed. Kiata Pene was at the address for approximately three hours at a time when the methamphetamine manufacturing process was active.
[119] The following day Kiata Pene was back at the address providing more assistance.
[120] I was easily satisfied that there is sufficient evidence that Kiata Pene intended to help or assist the others to manufacture methamphetamine. The combination of the number of visits he made, the assistance he provided, the time he spent inside the house and the evidence the cooks were active inside the house at that time led me to that conclusion.
(d) Did the defendant know methamphetamine would be manufactured when he aided, abetted, counselled or procured the manufacturers?
[121] For the same reasons discussed above I was satisfied that Kiata Pene had the requisite knowledge.
[122] It follows I was satisfied there was sufficient evidence in support of this charge and that the application should fail. The question of guilt was properly a matter to be determined by the jury.
Participation in an organised criminal group
[123] Section 98A(1) of the Crimes Act 1961 provides:
“(1) Every person commits an offence and is liable to imprisonment for a term not exceeding 10 years who participates in an organised criminal group—
(a) knowing that 3 or more people share any 1 or more of the objectives (the particular objective or particular objectives) described in paragraphs (a) to (d) of subsection (2) (whether or not the person himself or herself shares the particular objective or particular objectives); and
(b) either knowing that his or her conduct contributes, or being reckless as to whether his or her conduct may contribute, to the occurrence of any criminal activity; and
(c) either knowing that the criminal activity contributes, or being reckless as to whether the criminal activity may contribute, to achieving the particular objective or particular objectives of the organised criminal group.”
[124] The essential elements were helpfully set out by the Court of Appeal in
Te Kahu v R as follows:28
(a) participation in an organised criminal group (which is defined in s 98A(2));
(b)knowledge that at least three of the people in the group share at least one of a number of specified objectives (set out in s 98A(2)(a)-(d)). Such objectives include the commission of serious violent offences, or obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of four years or more;
(c) either knowledge that the accused’s conduct attributes to the occurrence of criminal activity, or recklessness as to whether his or her conduct may so contribute;29
(d)either knowledge that such criminal activity contributes to achieving the objectives of the organised criminal group or recklessness as to whether it so contributes.
[125] Ms Postlewaight accepted that at the relevant time there was in existence an organised criminal group.
[126] However, she submitted that Kiata Pene did not participate in the organised criminal group or, if he did, he did not know either: that three or more people shared the objective of obtaining material benefits from the commission of offences against s 6 of the Misuse of Drugs Act 1975; or that it was an “organised group”; or that his participation was contributing to the activity of the particular objectives of the organised criminal group.
[127] On the question of participation the Crown relied upon the same evidence as it did in relation to charge 2. I have already determined that there was sufficient evidence of participation.
[128] On the question of knowing whether three or more people shared the objective of obtaining material benefits from the commission of offences against s 6 of the Misuse of Drugs Act, it is apparent that Kiata Pene knew Brownie Harding. Furthermore, the manner in which he and Jaydean Hura greeted each other when they met outside the house on 21 October 2014 demonstrates he knew Jaydean Hura. And while there is limited evidence Kiata Pene knew any of the other cooks at the address at that time, given what had been, and still was, taking place in the house, as already discussed, it is reasonable to infer he knew it was an organised criminal group; that three or more people shared the objective of obtaining material benefits from the commission of offences against s 6 of the Misuse of Drugs Act; and that his participation was contributing to the activities of the particular criminal objectives of
the organised criminal group, namely manufacturing and dealing in methamphetamine.
[129] These are inferences which were available on the evidence for the jury. I was not satisfied that these inferences were so equivocal as to require the jury to guess or speculate. They were proper inferences available on the evidence.
[130] Accordingly the applications were dismissed.
Evanda Harding
Introduction
[131] Evanda Harding faced four charges. Three alleged that he manufactured methamphetamine. The fourth charge alleged that he participated in an organised criminal group.
[132] Applications under s 147 of the Act were brought only in relation to the manufacturing charges.
[133] The primary focus of Ms Pecotic’s submissions was charge 1. This related to the first of the manufacturing charges. Although not conceded, Ms Pecotic accepted that if there was sufficient evidence of knowledge and intent on this charge, her task in persuading me there was insufficient evidence in respect of the other two manufacturing charges was more challenging.
[134] In opening for the Crown, Mr Smith described the role of Evanda Harding as one which evolved during the course of the operation so that by mid-November
2014, when his father was house bound, he became more active in the manufacturing processes, reporting back to his father, conveying his father’s instructions and providing a courier service for pseudoephedrine and the finished product, methamphetamine.
[135] Charge 1 alleged Evanda Harding manufactured methamphetamine between
23 September and 26 September 2014. This period was before the audio device was
installed and before the second camera came into operation. A covert entry of the house was undertaken during the night of 25 and 26 September 2014. As earlier discussed, those photographs revealed equipment, reagents and chemicals consistent with methamphetamine manufacture.
[136] In the days preceding the beginning of this phase Evanda Harding had travelled up and down to Auckland at the behest of his father. The text messaging was suggestive of him delivering or picking up drugs and/or precursor substances.
[137] The Crown’s case was that his involvement in the first phase of manufacturing was limited to the last day, namely 26 September 2014. On that day he made three visits to the address. On the first occasion he was seen to get out of the driver’s seat of a white Toyota and enter the front of the house carrying a bag. In the Toyota were a number of blue bags of ice which he also carried inside the house. The car was there for only a few minutes.
[138] The next two visits occurred at 9:00 am and 1:45 pm. On the 9:00 am visit Evanda Harding was driving a Mazda RX8. This was his car and the one which he generally used. He walked into the house via the side door. The surveillance log showed that Brownie Harding was there with Elijah Rogers.
[139] On the last visit at 1:45 pm, Evanda Harding was seen to arrive driving the Toyota which he parked next to the side door. Elijah Rogers walked out the side door to the boot of the car. Evanda Harding walked from the car to the front porch. He entered the house carrying a bag. He was then seen to leave via the side door, open the passenger door of the Toyota and remove an unknown item from the back. A few minutes later he was seen to remove a bag from the side door of the car and put it into the boot. Then, at 5:08 pm, Brownie Harding walked out the side door, put a bag into the Toyota and got into the front passenger seat. Evanda Harding was then seen to leave the house. He had a short conversation with Elijah Rogers before getting into the car and driving away with his father. On this last visit he was at the address for several hours.
[140] Charge 4 alleged that Evanda Harding manufactured methamphetamine between 28 October 2014 and 31 October 2014. This was the fifth phase of manufacture. By this time the Crown said that Evanda Harding’s role was changing; he was assuming the role of supervisor for his father.
[141] During this manufacturing phase the cooks, Elijah Rogers, Jaydean Hura and Anthony Mangu experienced some technical difficulties. Evanda Harding had been out at the address and it is the Crown’s case he relayed back to his father, who at that time was in Whangarei, that the cooks were in difficulty. Brownie Harding went out to the address and the audio conversations make it plain he was extremely angry because it appeared valuable product had been lost through leakages in the apparatus. He spoke angrily of the fact it was the duty of the cooks to remain there until they recovered the lost product. He also spoke about the difficulties he would encounter in reporting this loss back to those in Auckland who, it would appear, he was reporting to.
[142] The audio conversations revealed Brownie Harding directed his son to “Put the lid on the thing”. He also said, “See that? That’s money”; “What now?”; “Go grab 10 bags of ice.” Shortly afterwards a car left and Evanda Harding returned not long after with bags of ice.
[143] Thus the Crown’s case was that not only was Evanda Harding providing assistance as a secondary party to the manufacturing process but he was also engaged, albeit to a lesser extent than the others present at that time, as a principal.
[144] The final count, charge 6 alleges that Evanda Harding, between 6 November
2014 and 14 November 2014 manufactured methamphetamine with Brownie
Harding, Elijah Rogers, Jaydean Hura, Anthony Mangu, Mark Lang and others.
[145] The last day in the period is 14 November 2014, which was when Evanda
Harding took the packaged methamphetamine to Auckland.
[146] The intercepted audio evidence revealed that at least four principal cooks were engaged in extensive manufacturing activities over this period, particularly during the last two days.
[147] By this time Brownie Harding was on home detention and was confined to his home in Whangarei. Shortly before 4:00 am on the morning of 14 November
2014 Evanda Harding arrived at the address. Not long after his arrival a conversation took place which the Crown alleged involved Evanda Harding, Jaydean Hura and Elijah Rogers. Evanda Harding was attributed as making a comment about “Auckland asking for them”. These attributions were challenged by the defence.
[148] Evanda Harding remained at the address for some hours while this cooking process was being undertaken. During that time there were a number of conversations attributed to Evanda Harding, some challenged by the defence and some not, while it was apparent methamphetamine was being manufactured. Later in the afternoon, he left the address carrying the PAK’nSAVE bag which the Crown claimed contained the methamphetamine. These movements have already been discussed in relation to Tyson Harding’s case.
Defence submissions
[149] Ms Pecotic made several challenges. First, she submitted that at least in relation to charge 1, it could not be said there was sufficient evidence that any assistance was sufficiently contemporaneous with the manufacture which she accepted had taken place between the nominated dates. Secondly, she submitted that Evanda Harding’s participation in his father’s operation was properly reflected in his guilty pleas; that he was a courier and not a participant in the actual manufacture. She went further and submitted it was evident Evanda Harding was simply responding to the directions of his father who she described as manipulative and abusive. Ms Pecotic submitted that in assessing whether Evanda Harding had the requisite intent it was necessary to take into account the fact that he had only just turned 17 at the time Taskforce Easter commenced and he was plainly beholden to and deeply influenced by his dominating father.
Analysis
[150] The central question in determining the s 147 applications was whether I was satisfied there was sufficient evidence to conclude that Evanda Harding had the necessary intention and knowledge at the times he participated.
[151] In relation to charge 1, I am satisfied there is sufficient evidence that Evanda Harding knew a methamphetamine manufacturing operation was taking place when he visited the address three times on 26 September 2014. He spent time inside the house and he delivered bags of ice. He was inside the house at or about the time Detective Sergeant Dunhill said methamphetamine was being manufactured. He drove his father away from the address that day.
[152] Nor can it be ignored that the covert entry revealed a set up inside the house consistent with a methamphetamine manufacturing operation. While the Crown was unable to prove where in the house Evanda Harding went, it was a reasonable inference open to the jury, given the number of visits and the time spent inside the house, that he knew what was happening and intended that his participation would assist in the manufacture of methamphetamine. This was properly a matter for the jury.
[153] As for the remaining charges of manufacturing, having found there was sufficient evidence of knowledge and intention in respect of charge 1, I had no difficulty concluding there was sufficient evidence of knowledge and intention in relation to charges 4 and 6. This was an ongoing manufacturing operation where, necessarily, knowledge by its participants accumulated as the various phases unfolded. Furthermore, it is apparent from the evidence that Evanda Harding’s role intensified over time. There is evidence available to the jury that he was not only involved as a secondary party but he also participated as a principal in the manufacturing process in the following phases.
[154] In the circumstances I was satisfied there was sufficient evidence to support charges 4 and 6 and these too should have gone to the jury.
[155] All applications in respect of Evanda Harding were dismissed.
Result
[156] The application by Tyson Harding was allowed and he was discharged on charge 8.
[157] The applications by Casey Rewha were allowed in part. She was discharged on charge 7. The application in relation to charge 9 was dismissed.
[158] The applications by Kiata Pene were both dismissed.
[159] The applications by Evanda Harding were all dismissed.
Moore J
Solicitors:
Crown Solicitor, Whangarei Ms Postlewaight, Whangarei Mr Leader, Auckland
Ms Pecotic, Auckland
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