Jackson v The Queen
[2017] NZCA 33
•2 March 2017 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA256/2016 [2017] NZCA 33 |
| BETWEEN | MARTYN JACKSON |
| AND | THE QUEEN |
| Hearing: | 13 February 2017 |
Court: | Miller, Mallon and Peters JJ |
Counsel: | G C Gotlieb for Appellant |
Judgment: | 2 March 2017 at 11.00 am |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
____________________________________________________________________
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 of Mr Jackson supplying methamphetamine to Mr Harris.
The Crown’s case relied on text messages (described in its opening as being “the bulk” of the evidence). The Crown called expert evidence about the coded words used in the texts. The Crown also relied on ESR analysis of swabs taken from the barn and one of the units which were consistent with the manufacture of methamphetamine at these locations. The barn and the unit had been fitted with CCTV security cameras, and the barn was alarmed and its windows were blacked out. There was also evidence of a store rewards card in the name of Mr Jackson which was used to buy large quantities of acetone, a product used to manufacture methamphetamine. The store owner identified Mr Harris and Mr Jackson as using that card to buy acetone. On three occasions in July and August 2013 Mr Jackson and Mr Harris were photographed together at Pak’nSave buying various items, including large quantities of purified water, paper towel and gas canisters. There was evidence that these were items utilised in manufacturing methamphetamine. There was also evidence that Mr Jackson had substantial outgoings despite not having worked for six months. Methamphetamine and $13,720 cash were found in the search of Mr Jackson’s residential address.
The defence contended that none of these items of evidence proved the charges. The Crown was unable to say that manufacturing had taken place at either the barn or the unit during the period covered by the charges, there were innocent explanations for each of the other circumstantial strands of the Crown’s case and the text messages were open to other interpretations.
The Judge provided comprehensive reasons for his verdict in a written decision delivered a few weeks after the hearing.[5] In that decision he made findings on the circumstantial evidence relied on by the Crown.
[5]R v Harris [2015] NZDC 17794.
He found methamphetamine had not been manufactured in unit 4B at Whangaparoa during the relevant periods. This was because ESR analysis of a swab taken at this address did not return any positive indication of controlled drugs.
The Judge said he could not conclude that methamphetamine had been manufactured in unit 5B during the period that it was leased to Mr Jackson. ESR testing confirmed the presence of methamphetamine but it was possible this was due to smoking methamphetamine. The age of the methamphetamine could not be determined and there had been other occupants of the unit both during the period of Mr Jackson’s lease and subsequently. There was evidence that an associate of Mr Jackson worked regularly at unit 5B on motorcycles and cars. The Judge found the CCTV camera at unit 5B was for security of the motorcycles and tools in the unit. He therefore considered the presence of methamphetamine at unit 5B was a “neutral factor” in relation to the charges Mr Harrison and Mr Jackson faced.
The Judge said he was also not able to conclude that methamphetamine was manufactured in the barn during the period of the charges. ESR analysis of a swab taken at the barn indicated levels of methamphetamine and pseudoephedrine consistent with the manufacture of methamphetamine. The levels present were too excessive to have been caused by smoking alone. However, the expert could not determine how long the methamphetamine had been there. The landlord had limited success in undertaking inspections when the property was leased to an earlier tenant and a neighbour described that earlier tenant as behaving strangely and having an extreme desire for privacy. The Judge therefore considered the presence of methamphetamine at the barn was also a “neutral factor” in relation to the charges.
The Judge similarly regarded the cash found at Mr Jackson’s house, the security camera, extractor fan and the blacked out windows of the barn as neutral factors. He considered there was insufficient evidence to conclude that Mr Jackson and Mr Harris’ outgoings were significantly in excess of their income. He regarded the significant quantities of acetone purchased as unexplained. He accepted the items purchased at Pak’nSave were ordinary household purchases but he was not persuaded this was their intended use. He considered this was significant evidence. It showed Mr Harris and Mr Jackson together purchasing similar items on three occasions, which were items used in manufacturing methamphetamine, and these items were not accompanied by other purchases as would be expected if this was routine shopping.
In light of those findings the Judge turned to consider each of the charges. Charge 1 was the joint charge of conspiring to manufacture methamphetamine during the period between 1 March 2012 and 1 October 2013. The Judge reviewed the text messages from this period. He provided examples of a series of text messages where Ms Dennis asked Mr Harris if he “got any mre” or when he was “working”, Mr Harris said he would contact his “mate”, Mr Harris then communicated with Mr Jackson, Mr Jackson responded with whether or when he had news, and Mr Harris reported this back to Ms Dennis. The Judge concluded from his review that the texts showed a clear connection between Mr Harris and Mr Jackson undertaking “work” and Mr Harris contacting Ms Dennis to whom he supplied methamphetamine. The meaning of the texts was supported by expert evidence about the use of code words. The Judge accepted the reference to “work” meant to manufacture methamphetamine. On the basis of the text messages, together with the ongoing purchase of acetone and the purchases from Pak’nSave, the Judge was satisfied the Crown had proven the charge beyond reasonable doubt.
There were a number of charges which alleged that Mr Jackson and Mr Harris manufactured methamphetamine on particular dates. For each of these charges the Judge reviewed the text messages relating to those dates. On some of those charges the Judge was satisfied that methamphetamine had been manufactured, but the evidence was insufficient to establish that Mr Jackson was involved beyond reasonable doubt.[6] For other charges the Judge was sure on the basis of the text messages that Mr Jackson was involved in the manufacture.[7] In other instances the Judge was not sure on the evidence that manufacture of methamphetamine had taken place.[8]
[6]Not guilty verdicts on charges 6, 11, 15, 17, 25 and 34 were given accordingly.
[7]Guilty verdicts on charges 19, 24, 26, 27, 28, 29, 31, 35, 38 and 39 were given accordingly.
[8]Not guilty verdicts on charges 7, 9, 11, 22, 30, 33 and 40 were given accordingly.
There were also a number of charges which alleged Mr Jackson had supplied methamphetamine to Mr Harris on particular dates. The Judge reviewed the text messages for these dates. In some instances he was satisfied that they proved Mr Jackson had supplied methamphetamine to Mr Harris on those dates, for on‑supplyto Ms Dennis.[9] In other instances he was not satisfied the Crown had proved that Mr Jackson had supplied the methamphetamine to Mr Harris.[10] On some of these charges Mr Harris had admitted supplying methamphetamine to Ms Dennis or other persons.
[9]Guilty verdicts on charges 8, 16, 20 and 23 were given accordingly.
[10]Not guilty verdicts on charges 10, 12, 14, 18, 21, 32 and 36 were given accordingly.
Mr Jackson submits the Crown conducted its case in a manner that was so strongly reliant on manufacturing having occurred at either or both locations that, in order to convict, the Judge had to assume manufacturing took place at some other location. As there was no evidence of any other location, Mr Jackson submits there was a void in the Crown’s case which required especially persuasive evidence to overcome. He says the text messages were too vague and open to other interpretations. He says the acetone and Pak’nSave purchases had reasonably possible innocent interpretations. He submits this evidence was therefore insufficient to overcome the void.
We do not accept this submission. The Judge was entitled on the basis of the text messages and the acetone and Pak’nSave purchases to be sure that Mr Harris and Mr Jackson were involved in manufacturing methamphetamine. The Judge carefully reviewed the texts that related to each charge. Mr Jackson was found guilty only of the charges where the Judge was able to be sure from the text messages that methamphetamine had been manufactured on the dates specified and Mr Jackson had been involved in that manufacture on those dates. That manufacture may have occurred at unit 5B, in Mr Jackson’s barn (the expert evidence did not exclude either of these locations) or somewhere else. It was not necessary to prove beyond reasonable doubt where the manufacture took place. As accepted by Mr Jackson, the place of manufacture was not an essential element of the charge. Mr Jackson has not shown the convictions were unreasonable.
At the hearing Mr Jackson’s counsel advanced a further point. He says the place of manufacture was presented as a key part of the case. He says the defence therefore concentrated on establishing doubt about that. Had the defence understood the case would be decided essentially on the text messages, he says they may have called polling data and cross-examined for days on the meaning of the texts. This submission does not bear scrutiny. The Crown case relied on a number of circumstantial strands of which the text messages were always an important component. Defence counsel relied on evidence which supported possible innocent meanings for some of the messages and made submissions on their meaning. The Judge accepted there was doubt in some instances but not in others.
Second ground: co-accused’s evidence
Shortly before trial Mr Harris and Mr Jackson applied for discharges under s 147 of the Criminal Procedure Act 2011.[11] Mr Harris filed an affidavit in support of his application. Mr Harris said he started dealing methamphetamine to support his addiction. He purchased methamphetamine from a person he knew as “Wayne” who lived in Orewa. He met Wayne once or twice a week at a carpark in Orewa and purchased methamphetamine in one gram lots. This enabled him to supply methamphetamine to others. He had to make constant enquiries with Ms Dennis for money to pay for the methamphetamine. He did not know where Wayne got the methamphetamine. He did not tell Mr Jackson he was supplying methamphetamine and he was never involved in manufacturing methamphetamine with Mr Jackson at the barn or Unit 5B.
[11]The s 147 applications were not formally ruled upon prior to the trial commencing. The Judge considered questions of evidential sufficiency were better considered during the trial.
Mr Jackson says this evidence was important to his defence. Defence counsel prepared for the trial collaboratively. They discussed that Mr Harris would give evidence at trial but Mr Jackson would not. Mr Harris entered guilty pleas on the supply charges against him because the evidence on those charges was insurmountable. Counsel thought he would need to put a credible narrative before the Court as to why he was a supplier and not a manufacturer. However, when the time came for elections, Mr Harris elected not to give evidence. Mr Jackson submits the absence of Mr Harris’ evidence led to a miscarriage of justice as that evidence was pivotal in exonerating him.
There are two difficulties with this submission. First, Mr Harris’ evidence was not fresh. Mr Jackson was aware of the evidence at trial and did not apply for severance.[12] Secondly, Mr Harris’ evidence was not credible or cogent. Mr Harris’ affidavit was seeking to exonerate himself from involvement in any manufacturing with a vague description of a supplier who was not Mr Jackson. The Judge was sure that Mr Harris was involved in manufacturing on the basis of the text messages and the acetone and Pak’nSave purchases. This was evidence of Mr Harris and Mr Jackson working together in manufacturing the methamphetamine which Mr Harris admitted he was supplying to Ms Dennis. Against that evidence, Mr Harris’ assertions that he was not manufacturing and was obtaining his methamphetamine from “Wayne” were not credible. Guilty verdicts for Mr Jackson would therefore still have followed even with Mr Harris’ evidence. If anything, Mr Jackson may have been convicted on additional charges if cross-examination of Mr Harris clarified some of the text messages where the Judge gave Mr Jackson the benefit of the doubt.
Sentence appeal
[12]R v Saggers [2008] NZCA 364 at [18]; and Tauvira v R [2016] NZCA 559 at [53].
The Judge adopted a starting point of four years and eight months’ imprisonment for the 10 manufacturing charges on which Mr Jackson was convicted. He regarded Mr Jackson as a principal offender and the offending as having a commercial element. The Judge uplifted that sentence by six months for the supply charges. He then allowed a four-month reduction because Mr Jackson had reduced the cost of the proceedings and a six-month reduction because Mr Jackson had spent an extended time on restrictive bail conditions. He declined to give further discounts for remorse and personal circumstances or because Mr Jackson had forfeited significant assets under the Criminal Proceeds (Recovery) Act 2009. Mr Jackson’s end sentence was therefore four years and four months’ imprisonment.
Uplift
Mr Jackson submits the Judge should not have applied an uplift for the supply charges. The Crown’s case was that Mr Jackson was supplying methamphetamine to Mr Harris, which he had produced with Mr Harris. It could therefore be said that Mr Jackson and Mr Harris had joint possession of the methamphetamine. While technically Mr Jackson may have supplied methamphetamine to Mr Harris, Mr Harris could have taken the same amount at the conclusion of each manufacture. Mr Jackson therefore submits that his supply did not increase the flow of methamphetamine into society.
We do not accept this submission on the facts the Judge found. Mr Jackson was found guilty of supply in four instances.[13] In three of those instances he was found not guilty of manufacturing on the dates that most closely preceded the dates of supply.[14] In the third instance both he and Mr Harris were found guilty of manufacturing (on 17 to 18 April 2013)[15] and Mr Jackson was found guilty of supply to Mr Harris soon after (23 April 2013).[16] However, Mr Harris pleaded guilty to a charge of supplying methamphetamine to Ms Dennis on 18 April 2013. This supply immediately followed text messages between Mr Harris and Mr Jackson arranging to “work” early in the morning on 17 April 2013. It is therefore not clear that the supply to Mr Harris on 23 April 2013 is the methamphetamine that was manufactured on 17 to 18 April 2013. In the fourth instance Mr Jackson was found guilty of supplying Mr Harris on 2 May 2013 following an earlier unsuccessful attempt to manufacture.[17] There was then another arrangement to “work” on 3 May 2013 on which Mr Jackson and Mr Harris were convicted,[18] but no associated charge of supply for Mr Jackson followed.
[13]Charges 8, 16, 20 and 23.
[14]Charges 8, 16 and 23.
[15]Charge 19.
[16]Charge 20.
[17]Charges 22 and 23.
[18]Charge 24.
The Judge was therefore not double counting the criminality involved in the manufacture and supply. None of the supply convictions corresponded with a joint conviction for manufacturing. The criminality on each manufacturing charge was complete when each instance of manufacturing was complete. Specific instances of supplying methamphetamine aggravated that criminality. An uplift was therefore appropriate.
Personal circumstances
Mr Jackson submits the Judge ought to have allowed a discount for his personal circumstances. Mr Jackson’s father had recently died of cancer. In the lead up to sentencing, Mr Jackson had been caring for his mother who was suffering from terminal cancer. She died shortly before he was sentenced, and her funeral took place the day before sentencing. Mr Jackson refers to Jarden v R as providing a comparable example where a six-month discount was given.[19]
[19]Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.
The Judge had sympathy for Mr Jackson’s situation, but considered it was not something for which a discount was appropriate. As the Judge said, the death of parents is a situation most of us have to face at some stage. This did not make imprisonment disproportionately severe. The Judge was entitled to take this view. Mr Jackson’s personal circumstances were not comparable to those in Jarden where the defendant’s partner took her own life while she was pregnant, causing the death of their unborn child and sparking his depression and anxiety. In this case the Judge was entitled to give deterrence paramountcy. The same applies to the fact that Mr Jackson has a serious arm injury from a motorbike accident, which his counsel put forward at the hearing as a further reason for allowing a discount.
Result
The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Solicitor, Wellington for Respondent
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