Jackson v The Queen - [2017] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/2016
[2017] NZCA 33

BETWEEN	MARTYN JACKSON Appellant
AND	THE QUEEN Respondent

Hearing:	13 February 2017
Court:	Miller, Mallon and Peters JJ
Counsel:	G C Gotlieb for Appellant S C Carter for Respondent
Judgment:	2 March 2017 at 11.00 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

Martyn Jackson was convicted, following a judge-alone trial before Judge Bergseng in the Auckland District Court, on 10 charges of manufacturing methamphetamine,[1] four charges of supplying methamphetamine,[2] and one charge of conspiring to manufacture methamphetamine.[3] He was sentenced to four years and four months’ imprisonment.[4] He appeals against his conviction and sentence.
[1]Misuse of Drugs Act 1975, ss 6(1)(b) and (2)(a) (maximum penalty life imprisonment).
[2]Sections 6(1)(c) and (2)(a) (maximum penalty life imprisonment).
[3]Section 6(2A)(a) (maximum penalty 14 years’ imprisonment).
[4]R v Harris [2016] NZDC 13374.
Mr Jackson’s conviction appeal is on two grounds. First, he contends his convictions were unreasonable because the Crown failed to prove manufacturing took place at the two locations on which its case was based. Secondly, he contends a miscarriage of justice arose because evidence from his co-accused was not before the Court. The sentence appeal relates to the uplift the Judge applied for the supply charges and because no discount was allowed for his personal circumstances.

Conviction appeal

The charges

The charges against Mr Jackson arose out of a police investigation carried out between November 2012 and October 2013. Amongst other things, the investigation obtained text messages sent and received by various persons, including Mr Jackson and his co-accused, Mr Harris, in that period. Search warrants were executed in October 2013 at various addresses, including Mr Jackson’s residential address and two units (unit 4B and 5B) in a storage facility at Whangaparoa leased by Mr Jackson.
Shortly before trial, Mr Harris entered guilty pleas to 80 charges of supplying methamphetamine to Ms Dennis and other unknown persons. In addition to these charges, Mr Jackson and Mr Harris faced a joint charge of conspiracy to manufacture methamphetamine between 1 March 2012 and 1 October 2013 and 23 joint charges of manufacturing methamphetamine. Mr Jackson also faced 11 charges of supplying methamphetamine and Mr Harris faced further charges of manufacturing, attempted manufacturing, and supplying methamphetamine. These charges proceeded to trial before Judge Bergseng.

First ground: place of manufacture

The Crown’s case was that Mr Jackson and Mr Harris were conspirators in an arrangement to manufacture and supply methamphetamine. The Crown contented the manufacturing occurred primarily at a barn on Mr Jackson’s property and, prior to that, in one of the Whangaparoa units. Mr Jackson and Mr Harris would arrange by text to “work”, Mr Harris would then contact Ms Dennis and instruct her to arrange money (“coin” or “paper”) and, once the manufacturing was carried out, Mr Harris would supply Ms Dennis and others methamphetamine. The supply charges against Mr Jackson concerned alleged instances…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Jackson v The Queen

Details

AGLC: Jackson v The Queen [2017] NZCA 33
Case: [2017] NZCA 33
Decision Date: 2 March 2017 at 11.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Martyn Jackson appealed against his conviction and sentence on charges of manufacturing and supplying methamphetamine and conspiring to manufacture methamphetamine. The Crown’s case was that Jackson and his co-accused, Mr Harris, were conspirators who manufactured and supplied methamphetamine. The appeal centred on two main grounds: first, that the convictions were unreasonable because the Crown failed to prove manufacturing took place at the two locations on which its case was based, and second, that a miscarriage of justice arose because evidence from Mr Harris was not before the Court. The sentence appeal related to the uplift applied for the supply charges and because no discount was allowed for Jackson’s personal circumstances.

The Court rejected the argument that the convictions were unreasonable. It found that the Judge was entitled to be sure that Jackson and Harris were involved in manufacturing methamphetamine based on the text messages and the purchase of items used in the manufacturing process. It was not necessary to prove where the manufacture took place. The Court also rejected the argument that the absence of Harris’ evidence led to a miscarriage of justice. It found that Harris’ evidence was not credible or cogent and that Jackson would still have been convicted even if Harris had given evidence. Regarding the sentence, the Court held that an uplift was appropriate because the supply convictions aggravated the criminality involved in the manufacturing charges. The Court also held that the Judge was entitled to decline to allow a discount for Jackson’s personal circumstances.

The appeals against conviction and sentence were dismissed.

Orders