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R v Adams

R v Adams

Case [2008] NZCA 171 18 June 2008

Admissibility of Evidence

Expert Evidence

Compensatory Damages

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA643/07
CA687/07
[2008] NZCA 171
THE QUEEN
v
GLEN RAYMOND ADAMS
KAELIB HANSEN
Hearing:28 May 2008

Court:Glazebrook, Chisholm and Cooper JJ
Counsel:C Muston for Appellant Adams

J W Watson for Appellant Hansen
M D Downs for Crown

Judgment:18 June 2008 at 3.30 pm

JUDGMENT OF THE COURT

A MR HANSEN’S APPEAL AGAINST CONVICTION IS DISMISSED.
B APPEALS AGAINST SENTENCE BY BOTH MR ADAMS AND MR HANSEN ARE ALLOWED.
CIn each case the sentence of 11 years imprisonment is quashed and replaced with a sentence of nine years imprisonment with a minimum non-parole period of four and a half years.

____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Table of Contents
Para No

Introduction  [1]
Background  [3]
Mr Hansen’s appeal against conviction  [12]
Importation direction  [12]
Identification direction  [17]
Unbalanced summing-up  [22]
Appeals against sentence   [28]
The appellants  [28]
Sentencing in the District Court  [30]
Mr Adams’ appeal  [35]
Mr Hansen’s appeal  [37]
Crown’s response to both appeals  [38]
Discussion  [41]
Outcome  [57]
Introduction
[1]       Following trial before Judge Wade and a jury in the District Court at Whangarei the appellants were convicted of importing gamma-butyrolactone (GBL) into New Zealand. GBL is commonly described as a date rape drug. Both appellants were sentenced to 11 years imprisonment and ordered to serve a minimum non-parole period of five and a half years – CRI 2006-088-000167.
[2]       Mr Hansen appeals against both conviction and sentence (but not against the minimum non-parole period). He appeals against conviction on the following grounds:
(a)     Erroneous directions by the Judge about the importation.
(b)Failure of the Judge to provide the jury with a direction as to identification evidence.

(c) Unbalanced summing-up by the Judge.

Mr Adams’ appeal is confined to his sentence, including the imposition of the minimum non-parole period.
Background
[3]       At trial the Crown alleged that between January 2004 and April 2005 Mr Adams had imported three 200 litre drums of GBL via Swift New Zealand Limited (Swift), a company specialising in the importation of chemicals. Those three importations had not been detected by customs. On the six counts in the indictment arising from those importations the jury found Mr Adams not guilty.
[4]       Once customs became aware that there was to be a fourth importation they joined with the police in monitoring the importation. That importation gave rise to count seven in the indictment which alleged that both Mr Adams and Mr Hansen had imported GBL between 28 October 2005 and 12 January 2006. Both appellants were found guilty on that count and this appeal arises from those verdicts and the resulting sentences.
[5]       The Crown’s case against Mr Hansen on count seven was that on 9 November 2005 he had arranged payment of $9,007.88 to Swift for the importation of a 200 litre drum of GBL from Japan. While Mr Hansen does not dispute that the payment was made to Swift, his case was that this payment was for a vehicle that he…

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 R v Adams

Details

AGLC: R v Adams [2008] NZCA 171
Case: [2008] NZCA 171
Decision Date: 18 June 2008

CaseChat Overview and Summary

The appellants were convicted of importing gamma-butyrolactone (GBL) into New Zealand. The appellants were sentenced to 11 years imprisonment and ordered to serve a minimum non-parole period of five and a half years. Mr Hansen appeals against both conviction and sentence (but not against the minimum non-parole period) on the following grounds: (a) Erroneous directions by the Judge about the importation; (b) Failure of the Judge to provide the jury with a direction as to identification evidence; and (c) Unbalanced summing-up by the Judge. Mr Adams’ appeal is confined to his sentence, including the imposition of the minimum non-parole period. The court found no errors in the Judge’s directions about importation and that the importation did not cease until the consignment was uplifted from the Swift premises. The court also found that the Judge did not err by failing to direct the jury that before Mr Hansen could be a party to the importation the Crown had to prove not only an overt act on his part, but also that he intended that GBL be imported into New Zealand. The court rejected the submission that there was an identification direction and that failure to do so gave rise to a miscarriage of justice. The court held that the Judge had put to the jury the various points raised by the defence and that there was no miscarriage of justice by virtue of an unbalanced summing-up. The appeals against sentence by both Mr Adams and Mr Hansen are allowed. The sentences of 11 years imprisonment imposed on each appellant are quashed and replaced with sentences of nine years imprisonment. Except to the extent that the 50 per cent minimum non-parole period will now be reduced to four and a half years, Mr Adams’ appeal against the minimum non-parole period is dismissed.

Orders