R v Bhikoo - [2017] NZHC 2688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-8720 [2017] NZHC 2688

THE QUEEN

v

MOBEEN BHIKOO BENJAMIN ALEXANDER MCLELLAN

Hearing: 19 October 2017

Counsel:

BD Tantrum for Crown
RM Mansfield for M Bhikoo and BA McLellan

Judgment:

2 November 2017

JUDGMENT OF FITZGERALD J [Disputed facts hearing]

This judgment was delivered by me on 2 November 2017 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v Bhikoo [2017] NZHC 2688 [2 November 2017]

Solicitors: Meredith Connell, Auckland
Dominion Law, Auckland

Introduction

[1] The defendants have each pleaded guilty to a number of charges of supply and possession of the Class A drug cocaine. In the context of these charges, it is accepted by both defendants that Mr McLellan supplied cocaine to Mr Bhikoo which
Mr Bhikoo then on-supplied to others.

[2] The summaries of facts for sentencing purposes are largely agreed. However,

Mr Bhikoo disputes the quantum of cocaine he is said to have supplied in respect of two charges (Charges 15 and 30). Mr McLellan disputes the quantum of cocaine he is said to have supplied to Mr Bhikoo (for Mr Bhikoo to on-supply to others) in respect of one charge (also Charge 30).

[3] The amounts in dispute are not insignificant and will be relevant to each of

Mr Bhikoo and Mr McLellan’s sentence.1

[4] This judgment considers whether the Crown has proved beyond reasonable doubt the quantum of cocaine said to have been supplied in relation to Charges 15 and
30 (for Mr Bhikoo) and Charge 30 (for Mr McLellan).

Background and what is in dispute

Charge 15 – summary of facts

[5] The summary facts for Mr Bhikoo relevantly provides as follows in relation to

Charge 15:

M o b e e n B h i k o o' s s m al l er c us t o m er s

Supplying and offering to supply cocaine (charges 3, 7, 10, 15 and 22)

…

1 A further more minor issue was canvassed at the outset of the disputed facts hearing, namely how many persons Mr Bhikoo supplied over a defined period, for the purposes of a representative charge. Counsel for all parties submitted, and I agreed, that this issue will not be material for the purposes of sentencing.

[PH] was a customer buying cocaine from Mobeen Bhikoo. From 19 May
2016 to 13 July 2016 Mobeen Bhikoo offered [PH] unknown amounts of cocaine on numerous occasions and on 27 May 2016 supplied him with 28
grams of cocaine.

[6] Mr Bhikoo accepts that he supplied cocaine to PH on 27 May 2016, but says the Crown has not proved how much. Mr Bhikoo says that the summary of facts should therefore record an unknown quantity of cocaine having been supplied to PH on that date.

Charge 30 – summaries of facts

[7] The summary of facts for Mr Bhikoo relevantly provides as follows in relation…

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 Bhikoo

Details

AGLC: R v Bhikoo [2017] NZHC 2688
Case: [2017] NZHC 2688
Decision Date: 2 November 2017

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard a case against defendants Mobeen Bhikoo and Benjamin McLellan, who pleaded guilty to multiple charges of supplying and possessing Class A drug cocaine. The defendants dispute the quantities of cocaine they are alleged to have supplied in respect of certain charges, which are relevant to their sentencing. The court was required to determine whether the Crown had proved beyond reasonable doubt the disputed quantities of cocaine in relation to Charges 15 and 30 for Mr Bhikoo and Charge 30 for Mr McLellan.

The court held that the Crown had not proven beyond reasonable doubt the specific quantities of cocaine supplied by Mr Bhikoo in relation to Charges 15 and 30, and Mr McLellan in relation to Charge 30. For Charge 15, the court found that there was a reasonable possibility that Mr Bhikoo supplied less than 28 grams of cocaine to a customer on 27 May 2016. The court could not exclude this possibility based on the evidence presented. For Charge 30, the court found that Mr McLellan supplied Mr Bhikoo with 28 grams of cocaine for on-supply to a customer, and Mr Bhikoo supplied 28 grams of cocaine to the customer on 30 July 2016. However, the court was not satisfied that the evidence proved beyond reasonable doubt that Mr Bhikoo sought a second 28 grams of cocaine for on-supply to the customer, that the second 28 grams was ready by the time of the meeting, or that it was delivered to the customer.

The court's decision was based on the lack of clear evidence to support the Crown's allegations regarding the disputed quantities of cocaine. The court found that while the alleged quantities were possible, it was also a reasonable possibility that the actual quantities were different. The court emphasized the need to be sure that the defendants supplied the disputed quantities of cocaine and found that the evidence did not exclude the possibility of lesser amounts being supplied.

The court ordered that the sentencing of the defendants would take place on 22 November 2017 at 9 am, based on the findings regarding the disputed quantities of cocaine.

Orders