Hutson v The Queen
[2005] NZCA 38
•9 March 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA390/04
CA444/04THE QUEEN
v
ANTHONY CHARLES MUNNINGS
AND
GWENDA IRENE HUTSONHearing:24 February 2005
Court:Anderson P, Randerson and Williams JJ
Counsel:S D Cassidy for A C Munnings
C L Harder and M J Coxon for G I Hutson
J M Jelas for Crown
Judgment:9 March 2005
JUDGMENT OF THE COURT
A.MS HUTSON’S APPEAL AGAINST CONVICTION IS ALLOWED, A NEW TRIAL IS ORDERED AND SHE IS REMANDED IN CUSTODY TO CALLOVER IN THE DISTRICT COURT ON A DATE TO BE FIXED BY THE REGISTRAR.
B. MS HUTSON’S APPEAL AGAINST SENTENCE IS DISMISSED.
C. Mr Munnings’ appeal against sentence is dismissed.
REASONS
(Given by Williams J)
Issues
[1] On 29 September 2004 the appellant, Ms Hutson, was convicted by a jury on re-trial of one charge of importing a Class B controlled drug, Ecstasy, on 24 June 2003. On 11 November 2004 she was sentenced to eight years imprisonment. She appeals to this Court against both conviction and sentence on grounds, refined during the hearing, that :
a)The verdict was unreasonable or could not be supported having regard to the evidence;
b)The summing-up omitted necessary directions on parties and lies.
c)The sentence was manifestly excessive.
[2] On 16 February 2004, shortly before the first trial, Ms Hutson’s then co-accused, the appellant Mr Munnings, pleaded guilty to the same charge. On 16 April 2004 he, too, was sentenced to 8 years imprisonment. He also appeals to this Court on the ground the sentence is manifestly excessive.
Facts
[3] The prosecution case was that both appellants were Australians who were in a relationship for about four years prior to the importation. They travelled separately from Brisbane to Auckland on 17 June 2003, spent the night together at an Auckland hotel and, next day, each collected pre-booked airline tickets to travel to Frankfurt, Germany, via Singapore and return to Auckland. They left Auckland on 18 June 2003, arrived in Frankfurt the following day and left on 22 June 2003, sitting together only on the Frankfurt-Singapore leg. They arrived in Auckland on 24 June 2003 at about 10:25am. Mr Munnings passed through Customs three minutes ahead of Ms Hutson. He was detained and when his luggage was searched two plastic containers were located holding 15,882 Ecstasy tablets with a potential street value of about $1m. Ms Hutson was not detained. She booked into an Auckland hotel. Before her scheduled departure to Australia, she was spoken to by Police on 25 June.
[4] We were told the jury at Ms Hutson’s first trial failed to agree and a second trial was terminated before verdict. At the third trial, the Crown case was that Ms Hutson was Mr Munnings’ “overseer”, that is to say one who supervises the drug courier, co-ordinates distribution of the drugs if the courier is successful in passing Customs, informs those further up the chain of distribution if such is not the case and generally takes steps to minimize the risk of apprehension.
Ms Hutson’s appeals
[5] The interviewing officer said that Ms Hutson denied knowing Mr Munnings but acknowledged that she and her boyfriend of four years, whom she named as a Mr Boussario, travelled separately from Brisbane to Auckland on 17 June. She told him that she had just turned 50 years of age. She said she had always wanted to travel to Frankfurt but said she had a falling-out with Mr Boussario when, in Auckland, he told her he had a Thai girlfriend. They argued about that. She then decided to continue with her trip, but not with him. She claimed she paid for the trans-Tasman ticket but her boyfriend paid for the return ticket to Frankfurt. They did not sit together at any stage on the return flight. She denied any involvement in the Ecstasy importation.
[6] However, in her evidence, Ms Hutson said the pair travelled separately to New Zealand as she was unable to book on Mr Boussario’s flight. She intended to celebrate her 50th birthday on holiday in New Zealand. The day after their arrival Mr Boussario gave her the return ticket to Germany as a surprise birthday present. But he then told her he had another girlfriend. There was an altercation but in the morning she decided to use the ticket to continue her holiday. They shared a taxi to the airport, though she and Mr Boussario did not speak. They flew separately to Singapore and on to Frankfurt, having minimal contact. They had no contact whilst in Frankfurt. She struck up a friendship with a German man and stayed with him, doing some shopping and sightseeing. She said she did not see or sit with Mr Boussario on either leg of the return journey or when they passed Customs in Auckland. Having checked in at her hotel she did a little sightseeing in Auckland and on her return found a note from the Police saying they had executed a search warrant on her room. They asked her to telephone. She did.
[7] Despite being pressed in cross-examination on inconsistencies and unusual coincidences in the evidence, she adhered to that view. The flavour of her evidence is perhaps encapsulated in the following passage :
Now, I’m suggesting to you that your role for the importation [of] drugs was to oversee Mr Munnings when he went through Customs. What do you say about that?… I say definitely not, it’s a lie.
And you see part of being an overseer is to be there but not to be associated with the courier, do you understand that? I understand what the role of a courier is now after the last 12 months, prior to that I had no idea.
That’s why you and Mr Munnings made every effort wherever you could to try and disassociate yourselves from each other? … Definitely not.
You disassociated yourselves from each other on the flight over from Brisbane by taking separate flights?… No that’s not correct. I tried to get onto his flight.
You disassociated yourselves from each other on your arrival cars by putting [sic] different hotels?… No that’s not correct.
You disassociated yourselves with each at the Kiwi International by going or by booking under separate rooms? … I didn’t find out there was a separate room until after I was arrested.
You disassociated yourself by giving different hotels on your departure cards when you left for Singapore?… No I did that, it was an oversight on my part. I did that.
And you disassociated yourselves when you came back through Customs by standing apart?…. No that is not true.
And you and Mr Munnings did your best to make sure that Customs in Australia would think that you had only been to new Zealand and back when you got back?…. That is not true.
And that is why you got Ms Zurowski to fly over here and buy you tickets up to Frankfurt and back? … I don’t even know the lady you are talking about.
That’s why she was giving false name and paying by cash?… I don’t know anything of that I had no idea –
She knew your name, she knew your address and she knew your credit number because she gave it to the hotel people?… I don’t know how she got that.
You see, ordinarily overseers don’t know the courier and vice versa, on this occasion you did know each other but that wasn’t a concern because you were so close that Mr Munnings was never going to give you out if he got caught?… That is not true.
You trusted him?… That is not true.
And he didn’t give you up did he?…. That is not true, you are fabricating, you are making something out of nothing.
[8] Ms Hutson’s evidence was in part corroborated by her 19-year-old son but, more importantly, Ms Hutson’s counsel called Mr Munnings. He claimed she was unaware of his intention to import drugs from Frankfurt to the point where he said he intended to put the containers including the drugs in her baggage prior to passing Customs at Auckland Airport.
[9] He, too, was cross-examined about inconsistencies, contradictions and coincidences in his evidence. As with Ms Hutson, Crown counsel specifically put to him that parts of his evidence were lies. He denied Ms Hutson’s role was to be his overseer.
Summing-up
[10] As part of his direction on elements of the importing charge, Judge Tompkins said (at 200-201):
Turning to this particular trial the accused faces the single charge of importing the Class B Controlled Drug Ecstasy into New Zealand. To prove this charge, the Crown has to prove three things and it is only the third which is in dispute in this trial. The first two that the Crown has to prove is that there was a Class B Controlled Drug Ecstasy and that is not in dispute here. The pills that were in the containers were Ecstasy and that that drug was imported into New Zealand. Neither of those things are disputed. It is the third thing that the Crown has to prove, namely that the accused was involved in that importation, that is, that she knowingly and actively was involved in the process by which the drugs entered New Zealand. So that is the central issue. How you decide that issue will decide your verdict. So you should ask yourself, "Has the Crown proved beyond reasonable doubt that Ms Hutson was knowingly and actively involved in the importation of the drug Ecstasy that happened?”
The Crown says that she was, that she knew about everything that was happening and that her role was that of the overseer as it has been heard so that she deliberately through a variety of actions together with Mr Munnings and Ms Zurowski, tried to create the impression that she was not involved but in reality the Crown says she was. She was there to keep an eye on Mr Munnings to watch what happened and if necessary to report to the others or the other if things went wrong.
The Defence say, and remember the Defence do not have to prove anything, but the Defence say that she was not involved. She was completely unaware what Mr Munnings, whom she knew only, the Defence say, as Mr Boussario, was doing. She was not the overseer and the Defence say that the Crown have failed to prove its case against her beyond reasonable doubt.
[11] He then gave conventional directions on inferences, circumstantial evidence and the three possibilities open in relation to defence evidence but, of some importance in Ms Hutson’s appeal, although he directed the jury that “if you accept that she had no involvement … with those drugs”, acquittal was the appropriate verdict and that rejection of the defence evidence did not prove guilt, he said nothing further about the necessity for proof of Ms Hutson’s involvement and gave no direction on lies. Even in summarising the respective cases, the Judge confined himself to factual matters raised in evidence including that the Crown case was that “Ms Hutson was the overseer, she was involved in this importation”. His summary of the defence case reiterated that Ms Hutson “denied adamantly having anything to do with the drugs”.
[12] During retirement, in response to a jury question asking for a repeat of the circumstantial evidence direction, the Judge gave an unexceptionable direction on the topic but prefaced it with the following :
As I have said in my summing up, inferences are important in this case because the Crown ask you to draw the crucial inference, the central inference from all the evidence that you heard in this trial that the accused was, what has been called, the overseer in this drug importation, that she was involved in importing the drugs. Not actually physically importing them because that is what Mr Munnings did but in overseeing the importation and being present, watching what happened and able, but not at least superficially, connected to the courier. So that if there was trouble, as there was, the Crown say she was able to carry on through the airport and then report back to whoever else was involved.
Submissions
[13] Mr Harder, in submissions on the first ground of appeal, relied on overseas authority that active involvement by an accused is required to be proved before a guilty verdict is justified. He submitted there was no evidence Ms Hutson did any overt act to alert or intended to alert any third party or that she had any intent to alert any third party following Mr Munnings’ importation and his apprehension.
[14] For the Crown, Ms Jelas submitted, the Crown case was always predicated on the basis Ms Hutson was a party to the importation as the “overseer”. She submitted it was open to the jury on the evidence to conclude that Ms Hutson and Mr Munnings were party to a joint enterprise to import Ecstasy into New Zealand notwithstanding their distancing themselves from each other. She submitted the direction on Ms Hutson’s knowledge and control, so far as they were elements of importation was, though succinct, adequate, left the jury in no doubt of the proof required before a guilty verdict could be reached and effectively reflected a similar summing-up accepted by this Court as sufficient in R v Burke (CA373/98 19 April 1999).
Discussion on conviction appeal
[15] We take the view the Judge may have been misled by the Crown’s approach in repeatedly referring to Ms Hutson during trial as an “overseer”. Whilst that may have been an integral part of the Crown’s approach to the case, it may well have put proof of Ms Hutson’s involvement too highly. In any event, it was not an element of the offence. It is clear that “importation” in the context of the Misuse of Drugs Act 1975 s 6(1)(a) is the act of bringing illicit drugs into New Zealand or causing them to enter this country and continues from the time the goods enter New Zealand until they reach their immediate destination or are available to the consignee (R v Hancox [1989] 3 NZLR 60, 62). So, in this case, the importation began with the Ecstasy being brought into New Zealand and continued until Mr Munnings’ apprehension. The actions of Mr Munnings and Ms Hutson before and after that time were evidence only as to inferences which might be drawn concerning her involvement by way of active encouragement or guilty knowledge. Given there was no evidence from either side of actual contact, whether physical or verbal, between Ms Hutson and Mr Munnings during that critical period, it must follow, despite the Crown’s approach, that a direction on parties was called for. That can be demonstrated by saying that, even had it rejected the defence evidence, the jury was still left with the fact that, during the period of importation of the Ecstasy, even on the Crown case, Ms Hutson and Mr Munnings sat separate from each other on the aircraft, there was no proved contact between them during baggage collection and, though not far distant, there was no proof of contact between them during the Customs procedures ending in Mr Munnings’ apprehension.
[16] In those circumstances, it was, with respect, insufficient merely to give the customary direction as to the proper approach for the jury to take should it reject the defence evidence. What was additionally required was a direction that, before it could conclude Ms Hutson was “knowingly and actively involved”, the Crown was required to prove to the usual standard that she did or omitted an act for the purpose of aiding Mr Munnings to import the Ecstasy or that she actively encouraged him in some way in that enterprise and that her mere presence in his proximity was insufficient.
[17] Equally, mere knowledge on Ms Hutson’s part was not enough to make her guilty of importing. If it were reasonably arguable that she may have been knowingly intending to participate in the planned importation but, following an argument with Mr Munnings in Auckland, she disassociated herself from his plan, she would have been entitled to an acquittal. The jury should have been instructed accordingly. Such a possibility was well arguable on the facts.
[18] This would also appear to have been a case where the Crimes Act 1961 s 66(2) may have been open depending on the jury’s view of the evidence.
[19] Unfortunately, however, as will have been seen from the passages earlier cited from the summing up, the jury received no direction on parties beyond the necessity for the Crown to prove that Ms Hutson was “knowingly and actively involved in the importation”. It received no direction as to what is required, in law, to amount to proof in that regard. Burke is distinguishable, as a parties direction was given in that case (at [8]-[10]).
[20] Therefore, while we do not accept the submission that the verdict was unreasonable and could not be supported on the evidence, we are driven to the conclusion that failure to direct on the important question of parties means the appeal against conviction must be allowed.
[21] Although, in light of that decision it is, strictly, unnecessary for us to decide the point, there were major contradictions and inconsistencies between the various versions of events, including the versions given on oath, and in those circumstances a direction on lies is likely to have been of assistance to the jury.
Appeals against sentence
Ms Hutson’s appeal
[22] In light of the decision on Ms Hutson’s appeal against conviction, no decision is required on her appeal against sentence and it is accordingly dismissed.
Mr Munnings’ appeal
[23] In relation to Mr Munnings’ appeal, the principal bases on which it was propounded by Mr Cassidy were that the Judge took too high a starting point, made insufficient allowance for the guilty plea and made no allowance for his lesser role as a courier.
Sentencing notes
[24] The Judge who sentenced Mr Munnings, after summarizing the facts, noted he had no previous convictions, a good work career and had pleaded guilty, though only shortly before trial. Aggravating features included the premeditation and the commercial nature of the importation coupled with the sheer scale of the operation. That, the Judge concluded, put Mr Munnings’ offending in the highest category in R v Wallace [1999] 3 NZLR 159. He reviewed authorities in this Court such as R v Wang (CA378-79/02 25 March 2003), R v Chan (CA93/04 14 July 2004), R v Cheng (CA379/02 25 March 2003) and R v Hui (2003) 20 CRNZ 297 before concluding (para [9]) that penalties of 7½-8½ years imprisonment were the consistent result.
[25] Judge Hubble took a starting point of 10 years but then reduced it by 18 months for the plea of guilty and a further 6 months for the appellant’s excellent past history and lack of previous convictions.
[26] Mr Cassidy submitted that, in light of those authorities, the starting point chosen was too high, though he was constrained to admit during hearing that the “starting point” chosen by the Judge must have been arrived at after the Judge had factored in the significant aggravating features to which he referred. Shorn of those factors, the starting point would appear likely to have been in the 7-8 year range.
[27] Mr Cassidy relied on the identical sentences ultimately imposed on Mr Munnings and Ms Hutson as indicating disparity given Mr Munnings’ plea.
[28] Ms Jelas submitted the chosen starting point was appropriate once aggravating features were taken into account and the reduction of 20% for the plea and lack of previous offending was generous.
[29] In our view, having considered those matters, the sentence ultimately imposed, though stern, was within range. It is also broadly comparable with cases such as Hui where one of two joint importers of 19,901 Ecstasy tablets had his sentence reduced from 9 years imprisonment to 7 years by this Court following a plea of guilty on grounds of manifest excess and unjust disparity with the co-offender. That decision led to a reduction in Chan, one of Hui’s co-offenders, from eight years imprisonment to six.
[30] The “starting point” must be taken to have been, as we have said, in the 7-8 year range. The elaborate means by which the offending occurred and the volume of drugs imported were significant aggravating features justifying a substantial increase. We agree with Ms Jelas that a total allowance of 20% for what was a late plea and for personal circumstances – usually accorded little weight in drug dealing cases – was, if anything, slightly generous.
[31] As to the suggested disparity in treatment of Ms Hutson and Mr Munnings, the facts are that, of the two accused, it was Mr Munnings who principally organised the couple’s trip to Frankfurt, it was he who obtained the drugs (and, presumably, paid for them), and it was he who actually effected the importation. On his version of events Ms Hutson had no involvement in any part of the offending. So, accordingly, he can scarcely argue that his was the lesser role and he was no more than a courier acting under oversight. The features mentioned are still factors properly to have been taken into account in sentencing Mr Munnings even if the defence evidence were rejected.
[32] Mr Munnings’ appeal against sentence is accordingly dismissed.
Result
[33] In the result :
a)Ms Hutson’s appeal against conviction is allowed, a new trial is ordered and she is remanded in custody to a callover in the District Court on a date to be fixed by the Registrar. Any application for bail should be made to that Court.
b)In consequence, Ms Hutson’s appeal against sentence is dismissed.
c)Mr Munnings’ appeal against sentence is dismissed.
Solicitors:
Crown solicitors, Auckland