Li v The Queen
[2017] NZCA 272
•28 June 2017 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA376/2016 [2017] NZCA 272 |
| BETWEEN | ZHITONG LI |
| AND | THE QUEEN |
| Hearing: | 13 March 2017 |
Court: | Cooper, Woodhouse and Collins JJ |
Counsel: | W C Pyke for Appellant |
Judgment: | 28 June 2017 at 3 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time for filing the appeal is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
At his trial before Gilbert J and a jury the appellant Zhitong Li was found guilty of eight charges of possessing pseudoephedrine for supply, six charges of supplying pseudoephedrine, one charge of possessing methamphetamine for supply and one charge of supplying methamphetamine.[1]
[1]R v Lam [2015] NZHC 1713 at [2].
He now appeals against his convictions on the methamphetamine charges. He claims the jury’s verdict was unreasonable. He also submits that the Judge did not provide a proper direction on inferences, resulting in a miscarriage of justice.
Extension of time
The appeal is brought pursuant to s 231 of the Criminal Procedure Act 2011. It was filed significantly out of time, more than one year after the date on which Mr Li was sentenced. In its written submissions, the Crown expressed concern that inadequate reasons had been given for the delay. However, at the hearing of the appeal Mr Tantrum indicated that the Crown was not opposed to an extension of time being granted.
Counsel for Mr Li, Mr Pyke, relied on a range of explanations for the late filing of the appeal, including the fact that English is not Mr Li’s principal language, the magnitude of the file, and the time Mr Pyke needed to come to grips with it. While we understand the concerns expressed by the Crown about the length of the delay, in the end the issues at stake persuade us that the appropriate course is to extend the time for appealing and we make an order accordingly.
Background
The charges on which Mr Li was tried followed a police investigation that revealed that a Mr Tran had organised a large-scale distribution network for ContacNT. ContacNT contains pseudoephedrine, a class B controlled drug. As a result of the investigation, the police concluded that Mr Li was a wholesale customer of Mr Tran, purchasing ContacNT from him and on-selling it to his customers.
Mr Li was tried with four co-defendants. Together they faced a total of 37 charges. Twenty three charges involved supply of pseudoephedrine and 12 charges were of possession of pseudoephedrine for supply. Mr Li was the sole defendant in relation to the methamphetamine charges. They alleged respectively that Mr Li:
(a)on or about 23 November 2013 at Auckland had in his possession the class A controlled drug methamphetamine for the purpose of supply; and
(b)on or about 23 November 2013 at Auckland supplied the class A controlled drug methamphetamine to unknown others.
The trial took place against the background that the organiser of the drug distribution network, Mr Tran, had already been convicted. Certificates of conviction relating to his activities were produced at the trial. In some cases, the Crown’s allegations against the defendants concerned intercepted conversations and photographed meetings involving Mr Tran and one or other of the defendants.
The charges on which Mr Li was convicted covered a five-week period from 16 October to 23 November 2013. He made six separate supplies of ContacNT during that period and supplied or had in his possession for supply 49 sets of ContacNT containing approximately 4.5 kilograms of pure pseudoephedrine. This would have been sufficient to manufacture between two and three kilograms of methamphetamine. He was also found guilty of the methamphetamine charges. At sentencing the Judge held that the pseudoephedrine offending justified a starting point of eight years’ imprisonment, placing it at the bottom end of severity for commercial drug offending on a major scale.[2]
Unreasonable verdicts
The Crown’s case at trial
[2]At [21], applying R v Wallace [1999] 3 NZLR 159 (CA) at [30].
The Crown’s case against Mr Li in respect of the methamphetamine charges was heavily reliant on an intercepted telephone conversation between Mr Tran and Mr Li. The conversation began at approximately 9.30 pm on 23 November. Mr Tran and Mr Li spoke in Cantonese. A translation was provided to the jury. It read as follows:
21:30:03 LI Hello.
TRAN Hello. Uh-huh.
LI Uh-huh. His/Hers there are time’s, a little bit short.
TRAN Short weight?
LI Yes, two grams short.
TRAN Short two grams again.
LIMmm. And also, this time’s seems, is it the same as the previous ones, feels, I feel that it is much more powdery, it seems, last time’s wasn’t, but last time’s didn’t seem to have that much powder. Is it from the same batch?
21:30:32TRAN The same batch.
LIThe same batch. I’ll see what the market response is. That is, we have sort—, sorted it out/we have done it. That is just to let you know. Short almost two grams.
TRANDid it weigh enough?
LIShort almost two grams.
TRANYou wasn’t able to get seventeen point five?
LINot as much as seventeen point five, um.
LI(Appears to be speaking to an unknown person in the background in Mandarin) One point four, is it?
LI(Back on to the phone) Oh, short one point four.
21:30:50TRAN Then there is a big discrepancy.
LIMmm?
TRANThen there is a big discrepancy.
LIUh-huh, then it is about right. That is just letting you know …
TRAN(Cut Over) If …
LI… nothing else.
TRAN… there isn’t, isn’t, isn’t seventeen point five, then, fuck, those, those ………….. have all been taken.
LIMmm. No problem then. It doesn’t matter. Only a bit short, only a bit short. It doesn’t matter.
TRANYou …
LI(Cut Over) That is we.
TRAN… you, you ………… there still wasn’t enough for it to be, um, seventeen point five.
LINot enough for seventeen point five. Not enough for seventeen point five. Not as much as seventeen point five. That is, not, that is, short, short one, one point five grams. It doesn’t matter. Leave it.
TRANNo, because, because there is extra in half a carton/strip. In a carton/strip, there is thirty, in a carton/strip there is thirty five point something. Do …
LI(Cut Over) I know.
TRAN… you understand?
21:31:36LI I understand. But we weighed it earlier and there wasn’t enough. That is, it was a little bit short. One gram, one point five grams short. That is, I weighed it once it was brought back and it was one point five grams short. But let’s leave it.
TRANWell, well, I’m not happy like that. You, you, you see, you see how it is with that, those, those, those, those trial stuff there.
LIThe, um, the, I’ll see what the market response is. Because, it is, I feel that there is more powder than last time, but don’t know if it is/was.
TRAN(Cut Over) Powder?
LIMmm. That is to say, there are no big pieces/granules like last time’s, that is, not so many. Last time there were more big pieces/granules, and there are fewer this time.
TRANDo you have a mindset problem?
21:32:18LI It is not a mindset problem. Because we have just finished doing it …
TRAN(Cut Over) Eh?
LI… got it all out to do it. There should—, …
TRAN(Cut Over) Do.
LI… shouldn’t be any problem. I’ll test the market response. There shouldn’t be any problem.
TRANIs that so?
LIMmm. It’s just to let you know rather than anything else. That is, it is short, short point, point something grams, one point four or one point five grams, more or less.
TRANOne point five?
LIUh-huh.
TRANAt the time, at the time, you, the, the, the half carton/strip that you cut, you tell me honestly, when you, you got out, um, ten, um, seventeen, um, seventeen point five, how much were there left?
21:32:52LI Ten, there were four grams left.
TRANThat’s right.
LIMmm.
TRANIt means that even the four grams …
LI(Cut Over) Oh.
TRAN… have gone/vanished too.
LIOh you are saying, oh you are saying that is was a whole carton/strip together. That’s what you mean.
TRANThis is a half a carton/strip.
21:33:05LI Oh, I, I see what you mean. So if you top it up up, top it up with up last times, because many photos were made from last time’s.
TRANMaking photos, I don’t, I don’t care about you making photos. It’s not topping up. I, I, I’m asking you about the half carton/strip, you cut out seventeen, seventeen point five, and how many grams were there left?
LIUm, four grams left.
TRANThat’s right.
LIThat is. Uh-huh.
TRAN(Cut Over) Now, now, this half carton/strip, doesn’t even, even have the four grams, yet still is short of that, that point, point five grams.
LIOh. I understand what you mean then, when you put it like that. Oh. I understand then.
TRANIs that right?
LIYes.
TRANIs that what it means?
21:33:37LI Yes, that’s right. Then, that’s right then. That’s right then. If it is separated from a carton/strip, then that should be right.
TRANBut what is the situation now? Um, is there enough, is there enough saved up now?
LINow, if there is a top up, top up of one point five grams, then there is enough, just enough, exactly ten, seventeen point five.
TRANNow, you have some that you can top it it up with right?
LIYes, there should be some to top it up. There are still some photos left from last time’s.
TRAN(Cut Over) But the half, half a carton/strip I gave you now, there is, there is, there is not enough for seventeen point five, is it?
21:34:03LI There is enough to make seventeen point five, if topped up by an extra one point five grams, then there is enough.
TRANThat is, if you don’t top it up, then there is not enough, is it?
LIThere’s enough, there’s enough, there’s enough. If last time’s are used to top it up. Because last time there were ……….
TRAN(Cut Over) I’m not talking about, I’m not talking about, I’m not talking about last time’s. I’m talking about this time’s first.
LIThis time it is one point five grams short.
21:34:18TRAN Before there is enough for seventeen point five, is it?
LIThat’s right.
TRANSo it is five point five, five point five grams short then?
LINo, one point five grams short.
TRANI know. One point five grams plus, plus the four point, um, four grams extra.
LIThat is, that is, that is a total of, one, that is this carton/strip, that is, there is a total of two point five grams extra. Do you understand? Last time what you gave us was seventeen point five plus four grams. And then this time it was under seventeen point five, one point five grams short. That is.
TRAN(Cut Over) That is, that is, that is, that is, that is, that is, um, that is there is a shortfall of, if it it is last time’s, is last time’s, then it is five point five grams short, isn’t it?
LIThat should be the case. You can put it like that.
TRANMmm, okay. So you, you top it up. I know. I know.
LIMmm, okay.
TRANOkay. Mmm, mmm, bye.
LIMmm, mmm, okay, thanks, bye-bye.
TRANMmm, so you top it up.
LIMmm, okay, mmm, okay, mmm. Bye-bye.
21:35:03(Call Ends)
The Crown also called evidence from Detective Sergeant Michael Beal, an experienced police officer who had worked in the field of drugs and money laundering for 17 years. His evidence included a description of the current landscape of drug offending in New Zealand based on previous drug investigations in which he had been engaged, including those involving monitored telephone conversations. He explained that pseudoephedrine was commonly imported and distributed in a form called ContacNT and used for the purpose of manufacturing methamphetamine.
Detective Sergeant Beal explained to the jury that ContacNT is a legal product in China where it is sold over the counter, predominantly in packets of 10 capsules, each capsule containing approximately 19 milligrams of pseudoephedrine. He explained, however, that when imported into New Zealand, the product is in the form of pink and yellow granules that have previously been extracted from the capsules. The jury was shown photographs of such granules, which Mr Beal compared to “hundreds and thousands” as seen on a “child’s cupcake”, but “a little bit smaller.” He described that what was referred to in the New Zealand drug scene as a “set” weighed 223 grams, being the combined weight of the granules in 1,000 capsules. He said that this was the “standard and most common distribution or dealing weights for ContacNT in New Zealand”. He valued a set as worth between $8,000 and $10,000.
It was also his evidence that other standard dealing weights for ContacNT were multiples of the weight of a set. He gave as an example 10 sets, weighing 2.23 kilograms. Occasionally, depending on packaging, it could be sold in kilogram or half kilogram weights but mainly “four sets”.
Detective Sergeant Beal also discussed the “conversion ratio” when pseudoephedrine was used in the manufacture of methamphetamine: 10 grams of pseudoephedrine could produce five to seven and a half grams of methamphetamine as a result of “an average chemical synthesis”. He confirmed that there is then a relatively settled conversion rate for a set of ContacNT used to manufacture methamphetamine. In a set of 223 grams, roughly 90 grams is pseudoephedrine, and 90 grams would have a standard conversion ratio of 50–75 per cent. Consequently, from 90 grams of pseudoephedrine, there would be a yield of between 45 and 67.5 grams of methamphetamine. This would be valued between $15,000 and $23,000.
Detective Sergeant Beal went on to give evidence about the manufacture of methamphetamine, which he described as a synthetic drug, made through a chemical process. Asked about its appearance when manufactured from pseudoephedrine he said:
A.It’s first manufactured as an oil and then the oil is dried and a crystalline produt is produced. The appearance of the crystalline products varies. This variance comes about as a result of the methods or the chemicals used in the manufacture and knowledge, or on occasions lack of knowledge, of the manufacturer … and colour can vary dramatically from yellows to browns to almost a clear opaque colour.
Q.Apart from oil and crystalline, does it come in any other guises?
A.There is a secondary process of re-crystallisation which is often undertaken, because it manufacturers a product which is more, I guess, physically attractive to the market. It can be produced in a form by going through a second process, which looks better and this form is referred to as “ice”, which is a term most of us are familiar with. It’s called ice because that’s what it resembles, it resembles shards of ice.
He also gave evidence that there were standard weights for dealing in methamphetamine. These vary according to the position in the import or distribution chain in which the dealer is operating. He said:
A.… The imported groups, senior distribution groups may deal in kilo weights but that’s, from a distributions perspective within New Zealand, is unusual. The domestic distribution, the most standard or common distribution weight is the imperial ounce, 28.5 grams. … That sells for anything between [$10000] to $16,000 depending on what is happening in the market at the time. Distributors or persons at the next level of distribution may deal in half ounces, 14 gram weights, called “halves” or quarters, sometimes known as “sevens”. The end consumer will purchase it in anything from gram weights, half gram weights to a point or .1 of a gram or 100 milligrams. A gram has a street level price of 600 to a $1000, generally around the seven, 750 mark. The half gram 350 to 500 and the point bag roughly a $100.
Q. And just confirm, a point is a tenth of a gram?
A. That is correct.
The detective said that smoking was the most common way methamphetamine is consumed in New Zealand, by placing a shard of the crystal in the bowl of a glass pipe, applying heat and then inhaling the fumes given off by the pipe. He referred also to “speed”, or “cut methamphetamine”, a product which he said was used in the 1990s, but not something heard of in more recent times. This was methamphetamine “mixed with a cutting agent such as glucose or dextrose”, and known as “poor man’s coke” because it was consumed in the same way as cocaine, called “doing a line”. Theoretically, methamphetamine could be consumed in this way if ground up into small enough particles. However, this was “not something [h]e hear[d] of being done”.
The Crown’s case on the methamphetamine charges was based on the combination of the intercepted conversation between Messrs Li and Tran, and the evidence of Detective Sergeant Beal. The prosecutor closed on the basis that the jury could infer their conversation was about methamphetamine as a result of the following reasoning:
(a)Mr Li had complained about “short weight”, saying it was short by two grams.
(b)Mr Li also said that the substance was “much more powdery” than before: “last time’s didn’t seem to have that much powder. Is it from the same batch?” On this point, the Crown relied on the fact that ContacNT, as it had been described by Detective Sergeant Beal and illustrated in photographs of it found in different locations, appeared to be of uniform shape: as counsel described it, the “hundreds-and-thousands type medicine that comes consistently out of those little plastic capsules”.
(c)When he was told that it is from the “same batch” Mr Li spoke of seeing what the market response to it would be.
(d)The discussion between Mr Li and Mr Tran concerning weights (“[n]ot as much as seventeen point five”, “short one point four”, “there is extra in half a carton/strip”, “in a carton/strip there is … thirty five point something”, “this half carton/strip doesn’t even … have the four grams, yet still is short of that … point five grams”, “[t]here is enough to make seventeen point five if topped up by an extra one point five grams”) was to be understood in terms of the evidence given by Detective Sergeant Beal about the common weights in which methamphetamine is sold.
(e)In particular, counsel referred to Detective Sergeant Beal’s evidence that the most common distribution weight was an imperial ounce (28.5 grams) with distributors at the next level down dealing in half ounces, namely 14 gram weights (called “halves”) and quarter ounces (called “quarters” and sometimes “sevens”).
(f)On the basis of the evidence about the level in the network at which Mr Li operated, the jury could infer that he would not be complaining about being short by as little as two grams. Counsel invited the jury to conclude that in the conversation he was using the word “grams” as a kind of code, and complaining that instead of receiving a half a kilogram of methamphetamine from Mr Tran, he had obtained one point four to one point five ounces less than the 17.5 ounces that he wanted.
(g)Counsel referred to other comments made by Mr Li in which he referred not only to the fact that the substance under discussion contained “more powder than last time” but went on to say:
… there are no big pieces/granules like last time’s that is, not so many. Last time there were more big pieces/granules, and there are fewer this time.
Counsel invited the jury to consider that evidence in the context of what Detective Sergeant Beal had said about the manufacture of methamphetamine resulting in a crystalline product, varying in appearance. The jury was invited to infer that Mr Li’s complaint about the absence of “big pieces/granules” must have been a reference to the “shards of ice” characteristic of methamphetamine produced by the secondary process of re-crystallisation referred to by Detective Sergeant Beal.
The defence case at trial
Mr Kaye, who was trial counsel, submitted that, whatever was happening in the discussions, there was absolutely no proof that what was discussed was methamphetamine. He submitted that there was no evidence to conclude that methamphetamine would be in any way “powdery”, the word used by Mr Li to describe the substance discussed with Mr Tran. Mr Kaye read to the jury Detective Sergeant Beal’s evidence that methamphetamine was first manufactured as an oil, and interpolated “powdery isn’t oil”, and, in relation to Detective Sergeant Beal’s evidence that a crystalline product is produced, submitted that “crystalline isn’t powdery”.
He then suggested that the detective’s reference to the varying colours (“yellows to browns to almost a clear opaque colour”) was also inconsistent with use of the word “powdery”. As to what the detective had described as the “secondary process of re-crystallisation”, Mr Kaye asked the jury rhetorically: “How on earth can you equate a conversation about something being powdery to shards of ice or yellow, brown or opaque crystals?” This, he said, did not “add up”. The Crown was “guessing” and the jury must not do that.
Mr Kaye also addressed the jury on the discussion about “weights”. He submitted that the Crown’s case was based on “some miraculous calculation” not justified by the evidence and also argued that the references to “half cartons or strips” were inconsistent with the product being methamphetamine. He pointed out that there was no evidence of methamphetamine coming in cartons or strips. In summary, Mr Kaye submitted that the two methamphetamine charges lacked support in the evidence and the jury could not be sure the substance involved was methamphetamine.
Submissions
Mr Pyke submitted that the verdicts on the methamphetamine charges were unreasonable on the basis that there was no direct evidence of methamphetamine possession and dealing, and an inference that Mr Li and Mr Tran had engaged in such conduct could not safely and reasonably be drawn on the evidence. The Crown could rely only on the intercepted conversation and the general evidence given by Detective Sergeant Beal about drug offending in New Zealand. Mr Pyke submitted this was insufficient.
Mr Pyke noted that in all other respects, the prosecution was about the distribution and sale of pseudoephedrine. There was no evidence that Mr Li possessed or handled large amounts of money, chemicals or equipment consistent with dealing in or manufacture of methamphetamine. Rather, the Crown relied on a single telephone conversation to show that on that occasion methamphetamine was possessed by Mr Li and had been traded by him.
While accepting that Detective Sergeant Beal was experienced in the field of drug offending, Mr Pyke submitted that his evidence did not justify a conclusion that methamphetamine was the subject matter discussed by Mr Li and Mr Tran. He submitted that quantities of the substance they discussed did not correspond to the “common” distribution weights of methamphetamine referred to by the detective, namely an ounce (28.5 grams) or a half ounce (14 grams). Mr Pyke pointed out that the detective had not been asked to give evidence about the quantity or weights referred to in the discussion, and he noted that none of the words that the detective had referred to as being commonly used in respect of methamphetamine appeared in the conversation: there was no reference to “ice”, “crystal”, “quarters”, “halves”, “sevens” or “points”.
Mr Pyke further submitted that the Crown could not properly rely on the reference in the discussion to a “powdery” substance as establishing that the discussion must have been about methamphetamine: there was no evidential basis for the proposition that a “powdery” substance could be methamphetamine, and overall the evidence was consistent with the subject matter of the conversation being a further transaction in relation to the supply of pseudoephedrine, in particular about its repackaging for supply. Mr Pyke pointed to the use of the words “carton”, “strip”, and “photos”, not explained in the evidence and not words that Detective Sergeant Beal had referred to as commonly used in the context of methamphetamine.
In the circumstances, the verdicts on the methamphetamine charges were unreasonable and should be set aside.
Mr Tantrum submitted that the jury was entitled to conclude that the discussion between Mr Li and Mr Tran concerned methamphetamine for a number of reasons. These included the fact that Mr Li had complained about the appearance of the substance, compared with what was supplied on a previous occasion, and queried whether it was from the same batch. This was consistent with Detective Sergeant Beal’s evidence that methamphetamine differs in its appearance from batch to batch both as to its structure and colour. In this respect there was a clear contrast with the evidence the detective had given in relation to the regular appearance of ContacNT as a professionally manufactured drug.
Mr Tantrum also submitted that Mr Li’s observation about the lack of “big pieces/granules” was a clear reference to methamphetamine, which according to Detective Sergeant Beal was often in larger pieces resembling shards of ice. This too was inconsistent with the regular appearance of ContacNT.
As to the weights and quantities involved, Mr Tantrum noted Mr Li’s complaint to Mr Tran that the substance was “short” by almost two grams. He told Mr Tran he could not get “as much as seventeen point five” and later (after speaking to someone described in the transcript as “an unknown person in the background”) said that the product is “short one point four”.
In relation to the part of the discussion in which Mr Tran said there was “extra” in half a carton/strip and then said there was “thirty five point something” “in a carton/strip”, Mr Tantrum noted that the Crown had closed to the jury on the basis that the reference to grams was in fact to ounces. This relied on Detective Sergeant Beal’s evidence that “senior distribution groups” could deal in kilo weights although the most standard or common weight was the imperial ounce or 28.5 grams. Distributors at the next level of distribution might, according to Detective Sergeant Beal, deal in half ounces or 14 gram weights. Mr Tantrum noted that in a kilogram there are slightly more than 35 ounces, and in half a kilogram slightly more than 17.5 ounces.
This evidence was to be contrasted with the detective’s evidence that pseudoephedrine is typically distributed in far higher quantities, often in multiples of “sets” weighing 223 grams. While pseudoephedrine might be sold in kilo or half kilo weights, the detective said that it was mainly sold in amounts of “four sets”, (equating to 892 grams). Mr Tantrum submitted that on the basis of this evidence, the jury could have concluded that the product being discussed was methamphetamine and not ContacNT, which would not commonly be dealt with in quantities as small as 17.5 grams.
Finally, Mr Li’s statement referring to testing the market response was an obvious indicator of supply.
Discussion
Section 232 of the Criminal Procedure Act provides that the first appeal court must allow an appeal if satisfied that the jury’s verdict was unreasonable having regard to the evidence. In Wiley v R this Court confirmed that this ground of appeal requires the court to be satisfied that no jury applying the criminal standard of proof could reasonably have reached a guilty verdict on the evidence. There is no requirement to go further to show a miscarriage of justice has occurred. Establishment of the unreasonable verdict ground means that the verdict cannot be supported.[3]
[3]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [10(c)].
The judgment in Wiley applied the Supreme Court’s decision in R v Owen, a case decided under s 385(1)(a) of the Crimes Act 1961, now repealed and replaced by the Criminal Procedure Act.[4] In that case, the Supreme Court accepted what this Court had said in R v Munro.[5] In particular, the Supreme Court said:[6]
… We would endorse the following aspects of the decision in Munro:
(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b)Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c)The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e)Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f)An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[4]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.
[5]R v Munro [2007] NZCA 510, [2008] NZLR 87.
[6]R v Owen, above n 4, at [13].
In the present case, Mr Pyke and Mr Tantrum have both acknowledged, for different purposes, the relevance of the context that Mr Li was engaged in a substantial way in the distribution of pseudoephedrine. Mr Tantrum’s case is that the context makes it more likely that Mr Li and Mr Tran were discussing methamphetamine because of the amounts of the substance they discussed and its appearance. Mr Pyke, however, submits that the context, in which all the other offending concerned pseudoephedrine, makes it likely that the relevant conversation was also about pseudoephedrine. That is to put the matter differently to how Mr Kaye addressed the jury at the trial. The defence actually put was that whatever the subject matter of the discussion was, the Crown had not shown that it was about methamphetamine.
We consider it likely the jury would have concluded that, having regard to its overall content, the discussion was about a controlled drug other than pseudoephedrine. In this respect, it must be acknowledged that there are difficulties reconciling what was said by Detective Sergeant Beal about the amounts or weights in which methamphetamine is traded at higher levels of a distribution network and the amounts mentioned in the discussion between Mr Li and Mr Tran. We have set out above the rival arguments about this issue. We think Mr Pyke was correct when he submitted that the quantities they discussed did not correspond to the “common” distribution weights of methamphetamine that Detective Sergeant Beal had described. It appears that Mr Li was concerned that he was “one point five grams short” of the “seventeen point five” that he sought. His initial statement was “two grams short” and it would have been reasonable for the jury to infer that subsequent references to “one point five” and “seventeen point five” were also references to grams.
Mr Tantrum submitted that the jury would have understood that the word gram was used as a code for ounces; there are slightly more than 35 ounces in a kilogram, and slightly more than 17.5 ounces in half a kilogram. He then referred to Detective Sergeant Beal’s evidence that senior distribution groups might deal in kilo weights. However, Detective Sergeant Beal’s evidence was that it would be unusual for distribution to be in kilo weights and the standard distribution weight was “the imperial ounce, 28.5 grams” with dealers at the next level down dealing in 14 gram weights. Even assuming that Mr Li and Mr Tran were using “grams” in a special sense, the 28.5 figure referred to by the detective was itself well short of the 35 grams that Mr Tran said was contained in a “carton/strip”. We think that a jury conclusion that the subject being discussed was methamphetamine based solely on the references to weights and quantities would necessarily have involved speculation.
What can be said, however, is that the weights referred to made it unlikely the discussion was about pseudoephedrine. Detective Sergeant Beal told the jury that sets of ContacNT weighed 223 grams. He also said that it was commonly sold four sets at a time. On the basis of this evidence the jury could reasonably have concluded that persons engaged at a comparatively high level in the distribution network would not have been discussing as small a quantity of pseudoephedrine as 17.5 grams, still less complaining about being “one point five grams short”.
There were also other aspects of Detective Sergeant Beal’s evidence that could reasonably have been relied on by the jury for a conclusion that the discussion was not about pseudoephedrine. We say that principally because of the evidence he gave about the regularity of the appearance of the granules extracted from the ContacNT capsules prior to their importation. The analogy drawn to “hundreds and thousands” would have enlivened his description for the jury. It formed a contrast with his description of methamphetamine when manufactured from pseudoephedrine. We have quoted his evidence about that above. His description of it as “crystalline”, of dramatically varying colour and sometimes as resembling shards of ice was a sufficient basis for the jury to understand that ContacNT granules and methamphetamine would be very different in appearance.
Once that point is reached, the question becomes whether the jury could reasonably conclude that what Mr Li and Mr Tran were discussing was in fact methamphetamine. The defence contention was squarely put by Mr Kaye in his closing address to the jury. As has been seen, he placed much emphasis on the use of the word “powdery”.
What Mr Li actually said was: “I’ll see what the market response is. Because, it is, I feel that there is more powder than last time, but don’t know if it is/was.” And, in response to a question from Mr Tran asking “Powder?” he said:
Mmm. That is to say, there are no big pieces/granules like last time’s, that is, not so many. Last time there were more big pieces/granules, and there are fewer this time.
It was for the jury to assess what Mr Li was intending to convey by this language. The word “powder”, if used literally and in its normal sense was inapt to refer to both pseudoephedrine and methamphetamine. But the reference to there being fewer big pieces/granules was consistent with the substance being methamphetamine as described by Detective Sergeant Beal, the word “powder” being used to contrast smaller crystals of methamphetamine with the larger pieces. The issue was essentially one for the jury, but we consider there was evidence on which the jury could have formed the view that the substance was methamphetamine. Such a conclusion would have been consistent with Detective Sergeant Beal’s evidence about the variability of batches of methamphetamine. They knew from the Judge’s summing‑up that they needed to be satisfied beyond reasonable doubt the substance was methamphetamine.
Applying the approach required by R v Owen we are not disposed to hold that the jury could not reasonably have concluded that the discussion was about methamphetamine. It follows that the jury’s verdicts on the methamphetamine charges cannot be characterised as unreasonable, and we reject this ground of appeal.
Failure to give an inference direction
Mr Pyke submitted that the guidance the Judge gave the jury in his summing‑up was inadequate because he did not give an inferences direction in relation to the methamphetamine charges.
The Judge reached the methamphetamine charges having earlier summed up on 16 charges against Mr Li involving possession or supply of pseudoephedrine. Having reminded the jury about the methamphetamine charges, the Judge referred them to the part of transcript where the discussion between Mr Li and Mr Tran was set out. He then said:
The Crown suggests that if you look at these transcripts closely in the light of Detective Sergeant Beal’s evidence about dealing weights and prices for methamphetamine as compared with pseudoephedrine, you should conclude that methamphetamine is involved here. That will be a matter for you. You need to be sure about that before you could enter convictions on either of these two charges.
Then he said:
[100] The Crown submits that the content of the discussions supports the inference it invites you to draw that the substance supplied was methamphetamine. The Crown refers not only to the price and weight of the substance but also the description of it. Mr Kaye, on the other hand, says that you cannot be sure that it was methamphetamine. He invites you to consider that the reference to the substance being “more powder than last time” which had “more big pieces/granules” is not consistent with Detective Sergeant Beal’s evidence about methamphetamine, including his description of it as being like shards of ice. A matter for you to consider as you work through each of the questions relating to these two charges.
As with the other charges, the Judge had included questions about the methamphetamine charges in a Question Trail provided to the jury. The questions were straightforward, simply asking the jurors whether they were sure, respectively that:
(a)on 23 November 2013 Mr Li had possession of the Class A controlled drug methamphetamine, and that the methamphetamine weighed five grams or more; and
(b)on or about that date Mr Li supplied methamphetamine to one or more other persons and knew the substance supplied was methamphetamine, or at least a controlled drug.
Earlier in his summing-up when dealing with a different charge against the co-defendant Mr Zigeng Ma, the Judge had told the jury that it had to determine whether the Crown had discharged its onus of proof beyond reasonable doubt as an inference from offending that had occurred on three earlier occasions. He used that charge to give a brief direction about inferences, saying:
[42] Whether you draw the inference invited by the Crown is for you to decide, as are all matters of fact. An inference is a conclusion drawn from facts that you accept as reliably established. It is not a guess. The ultimate question on this aspect of the case is whether you are satisfied beyond reasonable doubt that Zigeng Ma knowingly participated in the supply of pseudoephedrine on that date.
Mr Pyke complains that the Judge did not provide a similar direction to that which he had given in the case of the charge faced by Mr Ma. He relied on what this Court said in Pue v R:[7]
[28] The Crown case may also depend on the drawing of inferences. It is well-established that a jury should be advised that in assessing the meaning of the evidence in the case they are entitled to draw inferences, provided that such inferences are logical inferences from proven facts, not mere speculation or guesswork. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. Inference must be carefully distinguished from conjecture or speculation. As the appellants submit, the drawing of illogical inferences is not permitted.
[7]Pue v R [2014] NZCA 273 (footnotes omitted).
Mr Pyke submitted that an inferences direction should have been given because the jury required additional guidance given the risk of reasoning on the basis that because Mr Li was engaged in dealing pseudoephedrine he would also be involved in methamphetamine offending. He submitted the jury should have been directed that before they drew an inference that the substance being discussed with Mr Tran was methamphetamine they had to be sure of that fact, and not base their conclusions on speculation or guesswork about what the words meant, or about weights. Further, he submitted they should have been reminded of the evidence given by Detective Sergeant Beal and directed that the prosecutor’s argument was not supported by what the detective said about quantities, dealing weights and appearance. The Judge’s reference to the appearance of the finished product went only part of the way. The Judge should have given greater emphasis to the need for care in respect of these two charges, especially in relation to the identity of the substance.
Mr Tantrum submitted that the inferences direction given in relation to the charge against Mr Ma did not need to be repeated. It had conveyed the essential elements of an orthodox inferences direction and the jury could be taken to have exercised a degree of commonsense, and to have applied that direction to all the inferences it needed to draw in the course of its deliberations. Mr Tantrum also pointed to the question trail and its repeated statement that “On all issues the burden of proof beyond reasonable doubt lies on the Crown”.
We do not consider that the Judge needed to give a further inferences direction in relation to the methamphetamine charges. The direction given in the case of the charge against Mr Ma explained what an inference was and stated it was not a guess.
The specific directions given in relation to the methamphetamine charges made it plain that the jury would need to draw inferences if they were to find the methamphetamine charges proved beyond reasonable doubt. Effectively the Judge summarised the reasons advanced by the Crown for drawing the inferences and the reasons for the defence submission that the inferences should not be drawn. We do not consider that anything more was required.
Nor do we consider there was an appreciable risk of faulty reasoning of the kind raised, on a speculative basis, by Mr Pyke. The Crown made no argument in closing that Mr Li was more likely to be involved in methamphetamine offending because of the charges he also faced in relation to pseudoephedrine. Indeed, it would not have been logical or permissible for it do so.
This ground of appeal must also fail.
Result
The application for an extension of time for filing the appeal is granted but the appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent