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Kayrouz v R

Kayrouz v R

Case [2014] NZCA 139 14 April 2014

Appeal

Jurisdiction

Contract Formation

Unconscionable Conduct

Admissibility of Evidence

Contempt of Court

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA375/2013
[2014] NZCA 139

BETWEEN	SIMON LINDSAY KAYROUZ Appellant
AND	THE QUEEN Respondent

Hearing:	6 March 2014
Court:	Randerson, Venning and Cooper JJ
Counsel:	P G Mabey QC for Appellant J M Jelas for Respondent
Judgment:	14 April 2014 at 2:30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

The appellant, Simon Kayrouz, and four co-offenders were charged with offending under the Misuse of Drugs Act 1975.
The Crown alleged that one of the appellant’s co-offenders, Stephen Gray, led a conspiracy to produce methamphetamine and distribute methamphetamine, LSD and cannabis. It was alleged that Mr Gray was the instigator and that he engaged the services of the appellant and others. It was the Crown’s case that the appellant was the cook who manufactured the methamphetamine for Mr Gray. Other co-offenders, Messrs Haine, Murphy and Carlisle were allegedly responsible for the onward distribution of drugs supplied to them by Mr Gray.
Mr Gray pleaded guilty at the commencement of the trial to five counts relating to the supply or possession for supply of methamphetamine and LSD, and the sale and cultivation of cannabis. He denied any part in the manufacturing of methamphetamine.
The appellant was charged in five counts of a 16 count indictment. They were:
(a)Count 1, alleging that the appellant and Mr Gray manufactured methamphetamine.
(b)Count 2, alleging the appellant, Mr Gray and others supplied methamphetamine.
(c)Count 14, alleging that the appellant was in possession of pistols without lawful, proper and sufficient purpose.
(d)Count 15, alleging the appellant and Mr Gray had in their possession precursor substances (hydrochloric acid and sulphuric acid) with the intention that those substances be used to manufacture methamphetamine.
(e)Count 16, alleging that the appellant and Mr Gray possessed equipment and material capable of being used for the manufacture of methamphetamine with the intention that the equipment and material be used for that purpose.
The appellant was convicted on all five counts after a jury trial before Priestley J.[1] He now appeals against his conviction. Although three grounds of appeal were raised in the notice of appeal, the only ground pursued is a challenge to the admission at the trial of intercepted communications, derived from interception devices that had been installed in and around Mr Gray’s home. The Crown sought to rely on the intercepted communications, claiming they were admissible against the appellant pursuant to the co-conspirators’ rule.
[1]R v Gray HC Hamilton CRI-2010-019-2006, 10 December 2012.
Trial counsel for the appellant sought to challenge the admissibility of the intercepted communications prior to the trial and at the outset of it. However, Priestley J considered that the issue would be more appropriately addressed at the conclusion of the Crown’s case.[2] Mr Mabey QC, who has appeared for the appellant on the appeal accepts that was a sensible course to follow. In the result the issue was…

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 Kayrouz v R

Details

AGLC: Kayrouz v R [2014] NZCA 139
Case: [2014] NZCA 139
Decision Date: 14 April 2014 at 2:30 pm

CaseChat Overview and Summary

Simon Kayrouz appeals against his conviction by Priestley J on five counts in relation to drug manufacturing and supply. The primary issue for the Court was whether the trial judge erred in admitting intercepted communications between co-conspirators into evidence against the appellant. Counsel for the appellant argued that there was insufficient evidence to satisfy the Court on an objective basis that the appellant was a participant in the conspiracy, and that the statements in the intercepted communications were not made "in furtherance" of the conspiracy. The Court rejected the appellant's arguments, finding that there was reasonable evidence of the appellant's membership of the conspiracy, and that the intercepted communications were admissible as they were part of the natural process of making the arrangements to carry out the conspiracy. The appeal was dismissed.

Orders