R v Dobbyn
[2014] NZHC 2055
•28 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-004-18344 [2014] NZHC 2055
IN THE MATTER of an application for discharge pursuant to
s 347 of the Crimes Act 1961
BETWEEN
THE QUEEN
AND
ANTHONY CHARLES DOBBYN Offender
Hearing: 13 August 2014 Counsel:
BD Tantrum and RK Thomson for Crown
SJ Bonnar QC for Offender (Applicant)Judgment:
28 August 2014
JUDGMENT OF BREWER J
This judgment was delivered by me on 28 August 2014 at 4:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Stephen Bonnar QC (Auckland) for Offender
R v DOBBYN [2014] NZHC 2055 [28 August 2014]
Introduction
[1] Mr Dobbyn has been found guilty by a jury on a count of manufacturing methamphetamine.1 He submits that the jury was wrong and he should be discharged. I delayed entering a conviction so I could hear his argument.
Issues
[2] There are two issues:
(a) Is the jury’s verdict inconsistent with its verdict on Mr Grant Dobbyn? (b) If not, was the verdict reasonably available to the jury on the
evidence?
The law
[3] I have a discretion to discharge Mr Dobbyn, even though the jury found him guilty.2 However, it is rare for a Judge to discharge an accused after a jury’s verdict because it is the jury’s function to weigh and decide the facts. An accused has a right of appeal to the Court of Appeal and, generally, that is the forum for argument that something went wrong at trial.
[4] Nevertheless, I should not allow the verdict to stand if I conclude that would be wrong. It will be wrong if the verdict is so irreconcilable with another verdict that both cannot stand together.3 It will be wrong, otherwise, if on the evidence the verdict is unsafe.4
Is the jury’s verdict inconsistent?
[5] The Crown’s case was that on or about 28 September 2012, methamphetamine was manufactured at Wright Road, Matakana. The people named
in the indictment as culpable were Frank William Murray, Brett Campbell Bogue,
1 Count 17 in the indictment.
2 Crimes Act 1961, s 347(3).
3 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [24].
4 R v Flyger [2001] 2 NZLR 721 (CA) at [15].
Mr Dobbyn and his brother, Mr Grant Dobbyn. The Wright Road address belonged to Mr Grant Dobbyn, and he lived there. There was an alternative count that Mr Grant Dobbyn knowingly permitted his premises to be used for the manufacture.5
[6] Mr Murray and Mr Dobbyn were found guilty of the manufacture. Mr Grant Dobbyn was acquitted on the count of manufacturing and the jury could not agree on the alternative count of permitting his premises to be used for manufacture. Mr Bogue was not an accused in the trial.
[7] Mr Bonnar QC, for Mr Dobbyn, submits that the jury could not properly acquit Mr Grant Dobbyn but convict Mr Dobbyn. Their cases were intertwined.
[8] The defence cases for both Mr Dobbyn and Mr Grant Dobbyn were that even if the jury was satisfied that Mr Murray and Mr Bogue manufactured methamphetamine on 28 September 2012, that manufacture did not take place at Wright Road. If it did not take place at Wright Road then neither Mr Dobbyn nor Mr Grant Dobbyn could be implicated in the offending.
[9] Mr Bonnar submits that it was no part of Mr Grant Dobbyn’s case that a manufacture of methamphetamine could have taken place at his premises but without his knowledge. Yet that must be the conclusion the jury reached.
[10] Mr Bonnar submits that the conviction of Mr Dobbyn, the acquittal of Mr Grant Dobbyn and the disagreement by the jury on the count of permitting the premises to be used are, logically, reconcilable on two bases only:
(a) The jury concluded that a manufacture took place at Wright Road, that Mr Dobbyn was criminally involved with it, that Mr Grant Dobbyn was not and the jury could not agree whether Mr Grant Dobbyn had
knowledge of the manufacture and permitted it to occur; or
5 Count 18.
(b)The jury concluded that the manufacture took place somewhere other than Wright Road, that Mr Dobbyn participated, assisted or encouraged it but Mr Grant Dobbyn did not.
[11] Mr Bonnar submits that neither of those options was reasonably available to the jury. In respect of the first option, neither the defence nor the Crown suggested it was open to the jury to conclude that a manufacture had taken place at Wright Road but that Mr Grant Dobbyn was neither criminally involved nor had knowledge of it and permitted it to occur. Yet the jury concluded that while the manufacture occurred at his property, he was not a party to it, and the jury disagreed on whether he permitted it to occur.
[12] With regard to the second option, the count was specific to a manufacture at Wright Road. If the jury considered a manufacture had occurred somewhere other than Wright Road, it should have acquitted Mr Dobbyn. Therefore, it is Mr Dobbyn’s position that neither of the conclusions the jury could have reached are reconcilable with the decision to find Mr Dobbyn guilty.
[13] Issues of irreconcilability usually arise with verdicts applying to one person. So, it might be that two verdicts are irreconcilable because they cannot stand together legally (for example, convictions on both a principal count and a count which is alternative to it) or factually (for example, if the only factual issue is identity and there is a conviction on one count and an acquittal on another).
[14] Where, as here, it is argued that verdicts on different accused are irreconcilable, the difficulty for the proponent is that different cases are being compared. So, Mr Grant Dobbyn called (but did not give) evidence to suggest that his Wright Road address is unsuitable for the clandestine manufacture of methamphetamine and that his character is inconsistent with the allegations of his involvement. Mr Dobbyn did not give or call evidence. Further, the intercepted communications relied upon by the Crown can have different implications for each man, and the backgrounds of their involvement with the main accused, Mr Murray, can also be seen to be different.
[15] The jury might have concluded that manufacture took place at Mr Grant Dobbyn’s Wright Road address, that he was present and knew about it, but that he was not a party to it. They might have considered that it happened at the behest of Mr Dobbyn and Mr Murray and that Mr Grant Dobbyn disapproved but did not stop it. That could also explain why the jury could not agree on whether Mr Grant Dobbyn permitted his premises to be used for the manufacture.
[16] Of course, this is speculative on my part, but goes to the point that the evidence is for the jury to weigh and decide and where there is more than one accused, and different evidence applicable to each of them, finding verdicts to be irreconcilable is extraordinarily difficult.
[17] Likewise, the jury could have decided that Mr Dobbyn was more directly linked with Mr Murray’s methamphetamine manufacturing than Mr Grant Dobbyn. The intercepted communications in which Mr Dobbyn took part could have founded such an inference.
[18] There is nothing to suggest that the jury convicted Mr Dobbyn under the mistaken belief that it could do so if it concluded that he was party to a manufacture which occurred somewhere other than the Wright Road address. It was made very clear to the jury by counsel, and by me, that this count related to the Wright Road address only. Indeed, if the jury had disregarded this direction it should logically have acquitted Mr Grant Dobbyn on the alternative count.
[19] The arguments of counsel are not evidence but merely submissions on how the jury might regard the evidence. A jury cannot be criticised for bringing in verdicts which are inconsistent with counsel’s submissions but not inconsistent with views open to the jury to form.
[20] I conclude that the jury’s verdict of guilty for Mr Dobbyn is not inconsistent with its acquittal of Mr Grant Dobbyn.
Was the verdict reasonably available to the jury on the evidence?
[21] The evidence consisted primarily of intercepted communications between the accused. On 26 September 2012, Mr Bogue phoned Mr Dobbyn and Mr Dobbyn said that he was waiting for “chappy” (a nickname for Mr Murray) to arrive at the Wright Road property so they could, “get back into things, into work”. “Work” was said to be a code word for making methamphetamine.
[22] During 27 September to 2 October, the period of the alleged manufacture, there were two intercepted communications involving Mr Dobbyn indicating he was present at the Wright Road premises on 30 September 2012 at 12:52 pm and
2 October 2012 at 5:11 pm.
[23] On 30 September 2012, Mr Dobbyn said on the phone to Victoria Carson that he had been “moving trucks, cleaning cars, moving dead possums – all the nice jobs” and that another person described as “he” is “still there” and “has been doing a bit of work”. Ms Carson told Mr Dobbyn that “there is no phone in the house now so no one can interpret, like intercept it or anything”.
[24] On 2 October 2012, Mr Dobbyn asked Mr Bogue to go to a shop that is down by the tractors and get “a bottle of drink”. Mr Dobbyn told Mr Bogue if he went into the shop he should “speak to that chappy in there”. Mr Bogue asked if “chappy” was still “all good” and if he was there and Mr Dobbyn said “he’s there yeah and we, we sort of need that one quite quickly”. “Drink” was said to be a code for some drug- related liquid.
[25] On 2 October 2012, Mr Murray complained that he had sent Mr Dobbyn to “just shoot out, fucking grab that and come back” and that he had failed to perform the task. On 3 October 2012, Mr Murray asked Mr Bogue to pick up the “pH 7 buffer solution” that Mr Dobbyn had forgotten.
[26] The jury was entitled to take into account not only the evidence relating directly to the particular occasion of manufacture but also the background evidence of Mr Dobbyn’s relationship with Mr Murray and Mr Bogue. It could have concluded that all three had an ongoing association and that it was not innocent.
[27] Mr Dobbyn twice on the phone mentions “work” with other involved parties. As I have said, “work” was the code word used repeatedly by the accused for methamphetamine manufacture. Mr Dobbyn said to Mr Bogue that he was waiting for “chappy” (Mr Murray) so that they could get to work. Mr Murray, who was the leader of the manufacture, rang to ask if Mr Dobbyn was present at Wright Road. Mr Dobbyn asked Mr Bogue to pick up a “drink” and the jury was entitled to infer that that request had something to do with the manufacturing process. Mr Dobbyn was then later criticised by Mr Murray for failing to obtain a pH 7 buffer solution.
[28] All of this suggests that Mr Dobbyn was involved in some way with the manufacture. The jury was entitled to infer that given he was discussing “working”, he had been asked for specifically by name by Mr Murray and he had promised to obtain a pH 7 solution but then failed to obtain it, that at the very least he was encouraging the manufacture by the other accused. Deliberate presence at the scene of an offence is sufficient for a jury to find that a party encouraged the commission of an offence if the jury considers the presence of the individual is intended to
signify approval of the acts of the principal parties to the manufacture.6 Even if he
failed to obtain the solution, saying he would obtain it certainly signifies approval of the offending.
[29] Mr Bonnar submits that the “drinks” conversation cannot be used to found an inference that Mr Dobbyn was involved in the manufacture. The manufacture had been completed by the time the conversation occurred. I disagree. The conversation could found an inference that Mr Dobbyn had been involved in Mr Murray’s methamphetamine manufacturing operation, and was part of the ongoing conspiracy to make more. Therefore, his presence at Wright Road during the manufacturing can be seen as implicating him in the manufacture.
[30] Mr Bonnar points out that the circumstances surrounding the verdicts are relevant. The verdict for Mr Dobbyn was a majority verdict, it was entered following more than seven days of deliberation and it was entered a day after the jury had indicated it could not agree on the count. Therefore, there is a real and
substantial risk that the jury reached an illegitimate compromise.
6 R v Loper CA502/99, 22 May 2000 and R v Makita CA61/05, 27 June 2005.
[31] I do not accept this submission. I found the jury to be diligent and focused. It was not under pressure of time and largely determined its own schedule. It knew it was open for it to fail to reach agreement, as is made evident by the failure to return a verdict against Mr Grant Dobbyn on the alternative count.
[32] I do not find the jury’s verdict unsafe on the evidence before it. This is not one of those rare cases where I should, as trial Judge, refuse to allow a verdict to stand. The Court of Appeal, of course, can scrutinise any or all of the verdicts in the context of the whole of the evidence and all the legal rulings, if required.
Decision
[33] The application is dismissed.
[34] I will enter the conviction at the callover scheduled for 9:00 am on
3 September 2014 and set a date for sentencing.
Brewer J
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