R v Bowker - [2015] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-5509 [2015] NZHC 2365

THE QUEEN

v

NIGEL JOHN BOWKER

Hearing: 22 September 2015

Appearances:

R M McCoubrey for Crown
G C Gotlieb for Defendant

Judgment:

29 September 2015

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 29 September 2015 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Meredith Connell, Crown Solicitor, Auckland

Counsel: C G Gotlieb, Auckland

R v BOWKER [2015] NZHC 2365 [29 September 2015]

[1] The Defendant, Mr Nigel Bowker, is one of several defendants prosecuted as part of Operation Genoa. Operation Genoa involved substantial manufactures of methamphetamine. The Police terminated the operation in May 2014 and many of the defendants charged pleaded guilty.

[2] On 19 August 2015, Mr Bowker pleaded guilty to three counts of manufacturing methamphetamine, such manufactures having taken place in each of February, March and May 2014.1

[3] Mr Bowker sought a sentence indication prior to entering his pleas and swore an affidavit in support dated 30 June 2015. However, differences as to the extent of Mr Bowker’s involvement in the manufacture in March 2014 made it necessary to conduct a disputed facts hearing. That hearing took place on 22 September 2015, during which Mr Bowker gave evidence.

[4] Disputed facts hearings are governed by s 24 Sentencing Act 2002. Section 24(2) requires the Crown to prove, beyond reasonable doubt, the existence of any disputed aggravating fact. An aggravating fact is one that would justify a greater penalty.2 The Crown’s allegation of Mr Bowker’s greater involvement in the manufacture in March 2014 falls within this definition and, accordingly, is for the Crown to prove beyond reasonable doubt.

Trial of Mr David O’Carroll

[5] I presided at the jury trial (“trial”) of two other defendants charged as part of Operation Genoa, one of whom was the Mr David O’Carroll referred to in the charges to which Mr Bowker has pleaded guilty.3

[6] On 9 September 2015, Mr O’Carroll was found guilty of manufacturing

methamphetamine in each of March, April and May 2014. (There is no dispute that

Mr Bowker was in the South Island at the time of the April manufacture.)

1      Misuse of Drugs Act 1975, s 6(1)(b) and (2).
2      Sentencing Act 2002, s 24(3).
3      The notes of evidence at the trial were supplied to Mr Gotlieb as requested.

[7] The evidence produced at the trial was such that I was able to form a clear view of Mr O’Carroll’s involvement (substantial) and that of Shannon Stevens – another defendant and also cited in the charges to which Mr Bowker has pleaded guilty.

[8] The gist of the Crown case at the trial was that:

(a) the manufactures from March 2014 onwards took place at a property in Rataroa Road, Miranda (“property”) connected with Mr O’Carroll;

(b)the Police discovered Mr O’Carroll and Mr Bowker manufacturing at the property when they terminated the operation on 5 May…

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 Bowker

Details

AGLC: R v Bowker [2015] NZHC 2365
Case: [2015] NZHC 2365
Decision Date: 29 September 2015

CaseChat Overview and Summary

Nigel John Bowker was prosecuted for manufacturing methamphetamine as part of a larger operation, Operation Genoa, which involved significant methamphetamine manufacturing activities. Bowker pleaded guilty to three counts of manufacturing methamphetamine, which occurred in February, March, and May 2014. The court was required to determine the extent of Bowker's involvement in the March 2014 manufacture, as there were discrepancies between his sworn affidavit and his testimony during the disputed facts hearing. The court found that Bowker's affidavit did not accurately reflect his involvement in the manufacturing process and that he had participated in the March 2014 manufacture, contrary to his sworn statement. This determination was based on cell phone polling data, which placed Bowker at the property on 12 March 2014, and other evidence presented at the trial of other defendants involved in the operation.

The court held that the Crown had successfully proven, beyond reasonable doubt, that Bowker had a greater involvement in the March 2014 manufacture than he had admitted in his affidavit. This was established through the cell phone polling data, which showed Bowker's phone was active near the property on the relevant dates, and other evidence presented at the trial of other defendants involved in the operation. The court found that Bowker's account of his involvement in the manufacturing process was not credible, as it contradicted the evidence presented at the trial and his own cell phone activity. Consequently, the court found that Bowker had indeed participated in the March 2014 manufacture.

In conclusion, the court found Bowker guilty of participating in the March 2014 methamphetamine manufacture, in addition to the February and May 2014 manufactures for which he had already pleaded guilty. Sentencing is scheduled for 13 November 2015, at 9 am. Bowker's bail was continued on existing terms and conditions, as the Crown did not oppose it and Bowker had not breached his bail conditions.

Orders