McKenzie v R - [2013] NZCA 378

IN THE COURT OF APPEAL OF NEW ZEALAND

CA795/2012
[2013] NZCA 378

BETWEEN	JOHN DOUGLAS MCKENZIE Appellant
AND	THE QUEEN Respondent

CA731/2012
BETWEEN	ADAM JOHN MILES Appellant
AND	THE QUEEN Respondent

Hearing:	16 May 2013
Court:	French, Goddard and Ronald Young JJ
Counsel:	J H M Eaton QC and H C Coutts for Appellant McKenzie R G Glover for Appellant Miles C J Lange and B Hawes for Respondent
Judgment:	19 August 2013 at 10.00 am

JUDGMENT OF THE COURT

AMr McKenzie’s appeal against conviction is dismissed.
BMr Miles’ appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Table of Contents

Para No
Introduction  [1]
McKenzie appeal  [4]
     Facts  [6]
     Grounds of appeal  [16]
     The admissibility of the note  [18]

Section 27 of the Evidence Act – the co-defendants rule              [18]
Section 12A of the Evidence Act – the co-conspirators rule         [27]
Was the note an inadmissible hearsay statement?  [34]
Section 8 of the Evidence Act  [42]

Unreasonable verdict  [48]
     Summary  [51]
Miles appeal  [52]
Background facts  [53]        Appeal against conviction     [60]

Consistency of verdicts and adequacy of evidence [61]
Time for deliberation [66]
Intention[70]

Appeal against sentence [77]

Was the sentence manifestly excessive? [80]
Was the sentence unfairly higher than comparable co-offenders? [87]

Summary [96]

Introduction

Twelve accused originally faced an indictment with over 80 counts relating to drug offending, possession of firearms and other miscellaneous offending. By trial only five accused were left (including the two appellants Mr McKenzie and Mr Miles). The five accused faced an indictment of 25 counts broadly alleging conspiracy to manufacture methamphetamine, manufacture of methamphetamine, supply of methamphetamine and possession of precursor substances and equipment to manufacture methamphetamine. Some accused also faced firearms charges.
The conspiracy alleged Mr Miles and Mr McKenzie, along with a number of others, conspired to manufacture methamphetamine between 30 April 2010 and 9 June 2010 (count one). Mr Miles was also individually charged with manufacturing methamphetamine (count 10), possession of precursor substances with the intention to manufacture methamphetamine (count 11) and possession of equipment intended to be used to manufacture methamphetamine (count 12), all between 30 April and 9 June 2010.
Mr McKenzie was convicted of conspiracy; Mr Miles was acquitted of conspiracy but convicted of the three other offences. Mr Miles had also earlier pleaded guilty to three firearms charges. Both appeal their convictions and Mr Miles appeals his sentence of five years, five months’ imprisonment as manifestly excessive.[1]

McKenzie appeal

[1]R v Miles [2012] NZHC 3038.

The Crown case was that Mr McKenzie financed Mr Matthew Newton’s (another accused) manufacture of methamphetamine to the tune of $180,000 by way of a loan to him.
The pivotal issue in Mr McKenzie’s appeal is the admissibility of a note written by Mr Newton and the use (if any) to which the note could be put in the case against Mr McKenzie. If the note is inadmissible, then the Crown accepts Mr McKenzie should not have been…

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 The Queen [2013] NZCA 378
Case: [2013] NZCA 378
Decision Date: 19 August 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals from Mr McKenzie and Mr Miles against their convictions and sentences. Mr McKenzie appealed against his conviction for conspiracy to manufacture methamphetamine, while Mr Miles appealed against his convictions for manufacturing methamphetamine, possession of precursor substances, and possession of equipment intended for use in manufacturing, as well as his sentence. The Court found that the note written by Mr Newton was admissible in the case against Mr McKenzie, and that the verdict was not unreasonable. The Court also rejected Mr Miles' grounds of appeal against his conviction, finding that there was sufficient evidence to convict him, and that the jury had enough time to deliberate on the counts. The Court found that Mr Miles' sentence was not manifestly excessive or unfairly higher than that of his co-offenders. The appeals against conviction and sentence with respect to Mr Miles were dismissed, and Mr McKenzie's appeal against conviction was also dismissed.

Orders