McKenzie v R - [2013] NZSC 109

IN THE SUPREME COURT OF NEW ZEALAND

SC 87/2013
[2013] NZSC 109

BETWEEN	JOHN DOUGLAS MCKENZIE Applicant
AND	THE QUEEN Respondent

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	J H M Eaton QC for the Applicant A Markham for the Respondent
Judgment:	11 November 2013

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS

Introduction

Mr McKenzie was convicted of conspiring with a Mr Newton and others to manufacture methamphetamine. It was the Crown’s case that Mr McKenzie knowingly financed part of the operation.[1]
[1]McKenzie v R [2013] NZCA 378 at [3] [McKenzie (CA)].
A loan agreement dated 29 January 2010 was found at Mr McKenzie’s address advancing $180,000 to Mr Newton at an 80 per cent interest rate, repayable in three months and with no security.[2]
[2]McKenzie (CA), above n 1, at [7].
Also found at Mr McKenzie’s address was an undated note, attributed by the Crown to Mr Newton, inferentially referring to a part repayment of the loan ($50,000) and to the further manufacture of methamphetamine.[3]

Court of Appeal judgment

[3]McKenzie (CA), above n 1, at [9]. It was the Crown case that the note had been delivered by Mr Newton in early June 2010.

The Court of Appeal held that the note was admissible on the following grounds:
(a)The note was not a “statement” within s 4 of the Evidence Act 2006.[4] Accordingly it did not fall within s 27(1) of the Act, which prevents the use of a defendant’s statement against a co-defendant.[5]
(b)Alternatively, the co-conspirator’s exception to the co-defendant’s rule applied (s 12A).[6]
(c)The note was not inadmissible hearsay because it was not a statement, it was not produced to establish the truth of its contents, and because in any case s 12A operated as an exception to the hearsay rule.[7]
(d)The prejudicial effect of the note did not outweigh its probative value, in terms of s 8.[8]
[4]McKenzie (CA), above n 1, at [22], relying on R v Holtham [2008] 2 NZLR 758 (HC); and Hitchinson v R [2010] NZCA 388.
[5]McKenzie (CA), above n 1, at [22]–[25].
[6]At [27]–[33].
[7]At [34]–[40].
[8]At [42]–[47].
The Court of Appeal also held that there was sufficient evidence on which the jury properly directed could convict and that the verdict was not unreasonable.[9]

Leave to appeal grounds

[9]At [48]–[50].

Leave to appeal is sought on the grounds that the Court of Appeal erred in its findings set out at [4](a), (b) and (d) above. Leave is also sought to appeal against the Court of Appeal’s determination that the verdict was not unreasonable.

Whether the note was a statement

The Crown accepts that [4](a) raises an arguable question of law but, given the conclusion on [4](b), submits that it would not determine the appeal in Mr McKenzie’s favour.
We agree. Leave is therefore not justified on this ground.

Co-conspirator rule

As to [4](b), Mr Eaton QC submits, on behalf of Mr McKenzie, that the Court…

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 McKenzie v R

Details

AGLC: McKenzie v R [2013] NZSC 109
Case: [2013] NZSC 109
Decision Date: 11 November 2013

CaseChat Overview and Summary

The Supreme Court was asked to review an appeal in the case of McKenzie v R. The applicant, John Douglas McKenzie, was convicted of conspiring to manufacture methamphetamine and was found to have knowingly financed part of the operation. The case hinged on the admissibility of an undated note attributed to Mr Newton, which was found at Mr McKenzie's address. The Court of Appeal held that the note was admissible based on various grounds, including that it was not a statement within the meaning of the Evidence Act 2006 and that it was in furtherance of the conspiracy. The Court of Appeal also found that the evidence was sufficient to support the jury's verdict.

The legal issues before the Supreme Court centred on the admissibility of the note and the sufficiency of the evidence to support the jury's verdict. The applicant argued that the note was a statement within the meaning of the Evidence Act 2006 and that it was not in furtherance of the conspiracy. The applicant also contended that the verdict was unreasonable. The Crown argued that the note was not a statement and was in furtherance of the conspiracy, and that the evidence was sufficient to support the jury's verdict.

The Supreme Court declined to grant leave to appeal, finding that the Court of Appeal's reasoning was sound. The Court accepted the Crown's submission that there was sufficient evidence of Mr Newton's involvement in the conspiracy for the co-conspirator's rule to apply. The Court also found that the probative value of the note was high, as it provided an explicit link between the loan and Mr Newton's methamphetamine business. The Court was not persuaded by the applicant's argument that the note was not in furtherance of the conspiracy or that the verdict was unreasonable.

The final orders of the Court were that the application for leave to appeal was declined. The applicant was not granted leave to appeal the decision of the Court of Appeal. The conviction and sentence of the applicant were therefore upheld.

Orders