R v F HC Nelson CRI 2007 042 3707
[2008] NZHC 1271
•11 August 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI 2007 042 3707
THE QUEEN
v
F
B
AS
MS
S
Hearing: 4 and 5 August 2008
Appearances: R G Marshall & T Boyd-Wilson for the Crown
S Zindel for B , A and M
W Jones for S
A J Bamford for S
H Riddoch for S
Judgment: 11 August 2008
RESERVED JUDGMENT OF DOBSON J (ON SECTION 347 APPLICATIONS)
[1] The indictment in this matter originally included 24 counts, from which one has previously been severed. The remaining counts relate to a series of alleged undertakings between February and October 2007, in which various of the accused
either conspired to supply Class A or Class B controlled drugs, supplied Class A or
R V F AND ORS HC NEL CRI 2007 042 3707 11 August 2008
Class B controlled drugs, were in possession of Class A controlled drugs, or sold
Class C controlled drugs.
[2] On 4 and 5 August 2008, I heard a succession of applications under s 347 of the Crimes Act 1961, for discharge of various of the accused from various of the counts under which they are charged. It is convenient to deal with the issues, as they were raised in respect of each accused in sequence.
[3] The test I apply on these applications is that guided by the Court of Appeal’s reasoning in Parris v Attorney-General [2004] 1 NZLR 519, and most particular the oft-cited approach in paragraph [14] of that judgment:
The issue is not what the Judge may or may not consider to be the reasonable outcome. Rather, and crucially it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide.
[4] Obviously, s 347 applications can be renewed, including during the trial, as matters develop.
Mr S
[5] After a review of all the material placing Mr S in the context of the three conspiracy charges in counts 1, 4 and 11, Mr Marshall acknowledged that the challenge to his inclusion in those charges was appropriate, and the Crown did not oppose a s 347 discharge for Mr S in respect of counts 1, 4 and 11 and I so order accordingly.
[6] Of the balance of the charges Mr S faces, Mr Riddoch accepted that a case could not be made out under s 347 in respect of counts 18, and 20 to 23 inclusive.
[7] Accordingly, the terms of the remaining counts in the indictment in respect of which Mr S seeks discharge are the following:
Misuse of Drugs Act 1975 S.6(1)(c)
9. KERRY JOHN SIDWELL between the 5th day of October 2007 and the 10th day of October 2007 at Nelson supplied the Class A controlled drug methamphetamine to person or persons unknown.
Misuse of Drugs Act 1975 S.6(1)(c)
10. KERRY JOHN SIDWELL between the 1st day of January 2007 and the 10th day of October 2007 at Nelson supplied the Class A controlled drug methamphetamine to Kelly Anne Rowland.
Misuse of Drugs Act 1975 S.6(1)(e)
19. KERRY MICHAEL SIDWELL between the 8th day of March
2007 and the 13th day of October 2007 at Nelson sold the class C controlled drug cannabis to person or persons unknown.
[8] As to count 9, Mr Riddoch criticised the terms of the charge of supply “to person or persons unknown” as ultimately requiring a jury to speculate rather than being invited to draw inferences from available evidence. He argued that of the witnesses called at depositions who might have been among those supplied, having regard to the content of intercepted text messages and telephone discussions, all denied that they were supplied with methamphetamine by Mr S . As to the relevance of the frequency of short-term visitors to Mr S ’s residence, in the periods shortly after the Crown case alleges that he received supplies of methamphetamine from Mr B , Mr Riddoch argued that there was no evidence of greater frequency at these times with compared with others, that some of the monitored visitors went to the premises when in fact Mr S was not there, and that if the short-term visitors were there for drug buying purposes, the preferable inference was that it was cannabis and not methamphetamine.
[9] The Crown’s case in relation to this charge includes its interpretation of intercepted communications in the days leading up to 5 October 2007 which are reasonably open to the interpretation that Mr B and the other conspirators (now excluding Mr S ) were waiting for a significant quantity, approximately an ounce, of methamphetamine, which they had arranged to procure. For his part, Mr S was dependent on Mr B procuring his part of that consignment, and passing it on to Mr S . The intercepted communications are arguably consistent with that.
[10] The communications between Mr S and others, some of whom are unidentified and some of whom are identified and gave evidence at the depositions hearing, is open to the interpretation that Mr S was holding off persons who treated him as a supplier of drugs, and at least some of whom he then promptly communicated with on 5 October, once he had obtained a supply of methamphetamine from Mr B .
[11] Without analysing the strength of the inferences that can be drawn from this evidence in any detail, I am satisfied that this is a charge which should be left for the jury to decide.
[12] As to count 10, this charge involves the specific allegation of supply of methamphetamine to Kelly Anne Rowland, with the much wider timeframe between
1 January and 10 October 2007. Mr Riddoch placed some reliance on the fact that Ms Rowland was called at the depositions hearing, and denied that she had been supplied methamphetamine by Mr S . She agreed to that proposition in cross- examination, having in her evidence-in-chief volunteered that she had smoked methamphetamine with Mr S sometime in the middle of 2007, on an occasion where she had not supplied the drug. That earlier evidence, together with the terms of intercepted communications between Ms Rowland and the accused clearly represent a sufficient a basis for that count to go to the jury.
[13] As to count 19, Mr Riddoch’s challenge was along the same lines as that in respect of count 9, namely that there was no evidence of sale to persons unknown so that the jury would be required to speculate, rather than drawing an inference from the evidence.
[14] There are four witnesses who gave evidence at the preliminary hearing to the effect that they had been supplied with cannabis by the accused. That conduct is the subject of the specific supply charges in counts 20 to 23 of the indictment. It was argued that without evidence of supply to other persons, such a general charge is objectionable and should not be left to the jury.
[15] In addition, taking account of matters in cross-examination, Mr Riddoch argued that the evidence of the specific persons supplied ultimately denied that there was supply. He accepts, however, that those charges are properly left to the jury.
[16] In short, the Crown case in relation to count 19 alleges a course of conduct by Mr S that involved dealing in cannabis which went beyond sale to those persons where his conduct is the subject of specific charges. The evidence is sufficient to invite the jury to determine additional sales to persons not identified by the Crown, and I am satisfied that, on the stage the matter has reached thus far, that charge ought to go to the jury.
Mr S
[17] Mr Jones appeared in support of this application, on instructions from Mr Daniell-Smith who had filed a relatively detailed outline of his argument in support of the application for Mr S to be discharged from counts 1, 4 and 11. Those are the three charges alleging conspiracy to supply the class A controlled drug methamphetamine, and after the discharge of Mr S from each count, they will be in the following terms:
Misuse of Drugs Act 1975 S.6(1)(c) & 2A(a)
1. PAUL ANTHONY BARKER, LEO PETER FELDBRUGGE, LESTER JOHN SCHRODER between the 22nd day of February 2007 and the 6th day of September 2007 conspired at Nelson and elsewhere in New Zealand to supply the class A controlled drug methamphetamine.
Misuse of Drugs Act 1975 S.6(1)(c) & 2A(a)
4. PAUL ANTHONY BARKER, LEO PETER FELDBRUGGE, LESTER JOHN SCHRODER, ALAN JOHN MILLER between the 27th day of September 2007 and the 5th day of October 2007 at Nelson and elsewhere in New Zealand conspired to supply the Class A controlled drug methamphetamine.
Misuse of Drugs Act 1975 S.6(1)(c) & 2A(a)
11.PAUL ANTHONY BARKER, LEO PETER FELDBRUGGE, LESTER JOHN SCHRODER, ALAN JOHN MILLER between the 11th day of October 2007 and the 14th day of October 2007 at Nelson and elsewhere in New Zealand conspired to supply the Class A controlled drug methamphetamine.
[18] Mr S also faces two counts of supplying methamphetamine, on or about 5 and 14 October 2007, and present indications are that those charges will not be contested. In each case, the count alleges supply to Mr B and Mr S ’s complaint is that any evidence there is relates to involvement he had directly with Mr B , and that there is no evidence sufficient to include him in a conspiracy with others. It was submitted that none of the intercepted communications evidence any dialogue between Mr S and any of the other conspirators, except Mr B .
[19] It was argued that just as reconsideration by the Crown has led to an acknowledgement that Mr S was at a level below the conspirators in that S dealt only with B , leading to the conspiracy charges being dropped against Mr S , so too was Mr S in a similar position in the level above the conspirators, having dealings only with Mr B . Authority was cited for the propositions that passive acquiescence with the objectives of a conspiracy is not enough (R v Richards (Conspiracy) (1992) 9 CRNZ 403), and that the Crown cannot bring a wider range of people in as parties to a conspiracy simply by an inference that they share the same general objective (R v Beazley (No 13) HC AK CRI 2004-
004-3200 14 May 2007 Allan J).
[20] Accordingly, if the counts relating to supply by S to B are put to one side, then it was argued there is no case for including Mr S as part of the conspiracy involving Mr B and others to procure funding for the purchases of methamphetamine effected by S , in terms of individual dealings he had with B .
[21] As a final fall-back position, the submissions for Mr S complained of lack of particulars as to the contribution Mr S made to the conspiracy, and suggested that further particulars were necessary to ensure a fair trial.
[22] On that last point, it seemed to me by the end of argument that the combination of general submissions in relation to all the conspiracy counts addressed by Mr Marshall, and further specific responses to the arguments raised on behalf of
Mr S by Mr Boyd-Wilson, certainly afforded sufficient detail for counsel to take proper instructions from Mr S .
[23] One aspect of the Crown case against Mr S is the attribution to him of the nickname “The 20 Minute Man”. Mr Jones denied that there was evidence supporting this inference, but Mr Boyd-Wilson took me to sequences of communications involving reference to that name which would at least justify the Crown inviting the jury to draw such an inference.
[24] When Mr B was apprehended, a cell phone in his possession included within the list of contacts the telephone number of a cell phone being used by Mr S . That contact was listed in the telephone under the name “Th 20 Min Man”. Also, the exchange described below between Messrs B and F provides a basis for the Crown to suggest to the jury that other conspirators than B were aware of Mr S ’s involvement, whether by name or by that nickname.
[25] There are communications which suggest that conspirators other than Mr B were aware of the part that Mr S was playing, namely maintaining contact with a person or persons unknown in the Wellington region from whom Mr S could source significant amounts of methamphetamine. The communications also enable the Crown to argue that Mr S was aware of attempts Mr B made involving the raising of money for the consignments of methamphetamine that are the subject of each of the conspiracy charges. It may be that the Crown would argue Mr S was aware of others with a financial interest, even if not by reference to their particular identities.
[26] In this regard, the Crown cited the Court of Appeal decision in R v Messenger
[2008] NZCA 13, paragraph [19] of which included the observation:
It is also not necessary for an accused to know the identity of all the parties to the conspiracy or joint enterprise. It might be quite commonplace for a conspiracy to occur where no one person knows more than one other person involved in the conspiracy. As long as these individuals are aware that the enterprise goes beyond their agreement with that other person and knows in general terms the ambit of the conspiracy that is sufficient.
[27] Mr Boyd-Wilson instanced conduct within the period of the second conspiracy between 27 September 2007, which suggests that the conspirators had a pattern of behaviour involving at least B and F providing the funding for Mr S to acquire the methamphetamine and deliver it to B in Nelson. That evidence related to a meeting between Messrs B and S on the afternoon of 1 October, followed shortly thereafter by a telephone discussion between B and F in which B appears to refer to Mr S as the “20 Minute Man”, and reports to F that “one” (interpreted by the Crown to mean an ounce of methamphetamine) would be “up for grabs at the end of the week”. Mr B then comments to the effect that the price would be “$1500 more than we usually…get…em off him for…just cos this other dude’s greedy”.
[28] I accept that that is some evidence which could be put to the jury in respect of a pattern of dealing between the conspirators including Mr S .
[29] Others of the transcripts were referred to as examples of Mr B advising Mr S that he was dependent on others to come up with sufficient money for a further deal. The Crown would also invite an inference that Mr S was aware of a wider conspiracy than just dealing by Mr B , by virtue of the quantity and frequency of the second and third conspiracies, with a second ounce of methamphetamine to be supplied to B by S for approximately $17,000, within 10 days.
[30] I find that on the present analysis, there is sufficient evidence for Mr S ’s alleged participation in each of the conspiracies that are the subject of counts 1, 4 and 11 in the indictment to be left to a jury. Accordingly, grounds for a discharge are not made out.
Mr M
[31] For Mr M , Mr Zindel advanced a range of somewhat different arguments, in support of an application for discharge of Mr M from the conspiracy charges in counts 4 and 11 (set out at paragraph [17] above).
[32] A first point taken was that the terms of the charges do not specify with whom the conspirators are alleged to have conspired to supply methamphetamine. Mr Zindel foreshadowed an argument that a group of conspirators could not conspire to supply one or more of themselves, and that the charge was deficient if the accused did not know who the Crown alleges the accused intended to supply. He made the point that the presumption that possession of more than five grams of methamphetamine or more is for the purposes of supply which applies in charges of possession for supply does not extend to charges of conspiring to supply, so that the quantity of methamphetamine cannot on its own constitute the element of the charge that the conspirators supplied or intended to supply others with the drug.
[33] As to count 4 in the indictment, Mr Zindel submitted that the dates of the alleged conspiracy between 27 September and 5 October 2007 are wider than all the aspects of conduct and communications relied on in the Crown’s submissions defending the current application, leading to the suggestion that, to the extent that this count survived, it ought to be narrowed to the dates of 1 to 5 October which cover the activities commented on in the submissions for the Crown.
[34] Mr Zindel also challenged the adequacy of the evidence implicating Mr M as a member of the conspiracy described in count 4. In addition to the absence of any sufficient evidence on supply, he was inclined to submit that the communications involving Mr M do not sufficiently point to methamphetamine as the substance that was the subject of those communications, rather than, for example, ecstasy, a class B drug, which is also referred to in some of Mr M ’s communications.
[35] In relation to count 11, Mr Zindel characterised the Crown evidence as going to no more than attempts to arrange money, and that the references to what might be involved are very cryptic with no reason why the jury should treat the references as relating to methamphetamine. He argued that the only direct evidence of methamphetamine occurred in the 14 October 2007 search of Mr M ’s premises when the surveillance operation was being terminated. A point bag with traces of methamphetamine was found in his house at that time.
[36] When interviewed by the Police, Mr M had given the explanation for the dialogue between him and Mr B about money, that they occasionally lent money to each other.
[37] The Crown response to these points established that at this stage there is no sufficient basis to discharge Mr M from either count. As to the adequacy of the ingredients of the charges, Mr Marshall acknowledged that the absence of an allegation as to who was alleged to be supplied merely reflects present practice. Also, he accepted that the Court has looked with some disfavour on the practice of including end customers in the chain of those buying and selling drugs, as being within the conspiracy, and he further acknowledged that there is no suggestion that the supply is confined to the conspirators. It appears the Crown case will be that the conspirators conspired to supply the drug to others than themselves. On the period of time that the charge related to, Mr Marshall resisted any reduction, and submitted that, given the ongoing course of dealings between the participants, there was no basis to require any narrowing of the time involved. Once these points are clarified, the terms of these counts are not deficient in a way which causes material prejudice to the accused, and certainly does not constitute a ground for requiring amendment to the terms by the Crown, or a discharge under s 347.
[38] As to the sufficiency of the evidence, Mr Zindel’s arguments made the most of a range of sources of doubt which might ultimately be persuasive with a jury. However, they cannot go so far as establishing that there is insufficient evidence of Mr M ’s participation, for those counts against him to be put to a jury.
[39] In the context of the evidence of other activities by Messrs B and S , the dialogue between Messrs M and B is such that a jury may find the inferences the Crown case against Mr M will seek to make out, established beyond reasonable doubt. In respect of the earlier conspiracy between
27 September and 5 October 2007 for instance, there is a telephone discussion on
4 October 2007, as part of ongoing dialogue between the two about amounts of money and supply of something, in which Mr M says:
The one no…not one not the um…not the bloody chicken eggs the…the other you know the other
And Mr B ’s reply is:
Um the oth…the other was 4250
[40] It is tolerably clear that this is part of a discussion about the prices for certain items. After the exchange just quoted, Mr M advised that he was seeing someone in the next half hour and should have a definite answer for Mr M , implicitly shortly after that meeting.
[41] The Crown says that “4250” refers to $4,250, being one quarter of the
$17,000 price for an ounce of methamphetamine. There are other references suggesting that Mr M would take a quarter of an ounce.
[42] On the element of the counts requiring the establishment that the methamphetamine was for supply to others, the Crown will rely on the quantities involved. Its case will be that Mr M took one quarter of an ounce in one of the conspiracies and will invite the inference that he was involved for that or somewhat more in the next conspiracy. It will rely also on the frequency of supplies of these significant quantities of the drug, being only some 10 days apart. Lastly, it will rely on the references in telephone discussions to third parties being involved and invite the inference that their involvement was as purchasers of part of the drugs being bought by Mr M .
[43] Accordingly, I decline the present round of applications for discharge under s 347. I have dealt with counsel’s quite thorough arguments somewhat cursorily, but do not intend any discourtesy in doing so. Once I am satisfied that there is sufficient evidence for the matter to go to a jury, it seems preferable to say as little as possible about my own views on the relative strengths and weaknesses of the Crown’s case. Unless persuaded to the contrary at a later stage, that is the task of the jury and I stay away from it.
Pre-trial telephone conference
[44] As discussed with counsel remaining at the conclusion of the hearing, I urge dialogue between those acting respectively for the Crown and each of the accused,
on any reasonable agreements that can be reached to facilitate smooth running of the trial. I will also direct the Registrar to arrange a pre-trial telephone conference, at
9.00am one morning early in the week of 20 October 2008.
Dobson J
Solicitors:
Pitt & Moore, Nelson for the Crown
Zindels, Nelson for B , A and M Daniell-Smith & Co, Nelson for S Bamford Law, Nelson for S
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