R v G HC Auckland CRI-2009-004-25298

[2010] NZHC 1730

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-25298

THE QUEEN

v

G

Hearing:         22 September 2010

Appearances: Robin McCoubrey for Crown

Eb Leary for Accused

Judgment:      23 September 2010

JUDGMENT OF BREWER J (SECTION 347 APPLICATION)

[1]      Mr G   has been indicted on one count of possession for supply of a Class A controlled drug, methamphetamine.   He applies for an order pursuant to s 347 Crimes Act 1961 that he be discharged on that count.

The facts

[2]     On 11 November 2009 a Japanese National was arrested at Auckland International Airport having imported a significant amount of the Class A controlled drug, methamphetamine concealed in a suitcase.  It seems that she agreed to assist

the  police  by  going  through  with  the  planned  handover  of  the  drug  to  her

R V G HC AK CRI-2009-004-25298  23 September 2010

New Zealand contact.  Accordingly, she went to the Quay West hotel in Auckland with the suitcase containing the drug.

[3]      Shortly after 8 pm on  11 November 2009  a  Mr Nourian  and Mr G   arrived outside the hotel on foot.  Their movements were partly recorded on three surveillance  cameras.    Mr Nourian  went  into  the  hotel  and  Mr G    stayed outside.    For  a  period  of  about  10 minutes  he  was  outside  the  view  of  the surveillance cameras but returned eating an ice cream.  Inside the hotel the Japanese National made contact with Mr Nourian and handed over the suitcase with the drugs in it.   The police then arrested Mr Nourian and shortly afterwards a police officer approached Mr G   outside the hotel and arrested him also.

[4]      When searched, Mr G   was found to have in a jacket he was wearing two cellphones which it is common ground belonged to Mr Nourian.  Also in one of the pockets of the jacket was a small piece of cardboard upon which was written the (misspelled) name of the hotel, and "Suite 8/09-3096000".  The reference to "Suite

8" is mysterious since suites at the hotel are designated by three numerals and "8" could not relate to the room the Japanese National had taken.  The telephone number is that of the Quay West hotel.

[5]      Upon being interviewed Mr G   said that he knew nothing of the drugs deal and had gone out with Mr Nourian to go clubbing.  Mr Nourian had lent him the jacket for the evening and said that he wanted to stop at the hotel because he had friends there who might join them.

[6]      There  is  no  other  evidence  implicating  Mr G    in  the  drugs  deal. Telephone records show that there was earlier communication between Mr Nourian and Mr G   that day but, as Mr McCoubrey for the Crown rightly accepts, that is  equally  consistent  with  Mr G  's  account  of  meeting  Mr Nourian  to  go clubbing.

[7]      The test for discharge prior to trial is well known and is set out conveniently in R v Flyger[1].

[1] R v Flyger [2001] 2 NZLR 721 (CA).

[8]      In this case, the question is what inferences a jury could properly draw from the evidence of Mr G  's presence outside the hotel.  The Crown submission is that  the  jury  could  infer  that  having  accompanied  Mr Nourian  to  the  hotel Mr G   must have been aware of what was going to happen and must have been a part of it.  Mr Nourian would not have brought an innocent person to such an event because that would greatly increase Mr Nourian's risk since Mr G   would be a potential witness against him.  Further, submits the Crown, the fact that Mr G   was in possession of two of Mr Nourian's cellphones shows the link between them and  points  to  Mr G    being  outside  the  hotel  as  a  lookout.    The  piece  of cardboard with the references to the hotel also shows prior knowledge that that was their destination.

[9]      Mr Leary for Mr G   submits to the contrary that there is really no evidence upon which a jury would be entitled to infer guilt.  To do so a jury would have  to  be  satisfied  beyond  reasonable  doubt  that  the  evidence  proves  that Mr G    was  not  only  in  Mr Nourian's  company  but  that  he  knew  that Mr Nourian was going to the hotel to obtain drugs and he intended to assist him. Mr Leary submits that there is no evidence that suggests that Mr G  's innocent explanation for the possession of the jacket, phones and piece of cardboard is untrue. Mr Leary submits that the surveillance camera footage does not show Mr G   acting as a lookout, or doing anything else to assist Mr Nourian, and it would be most unlike someone taking part in a major drug exchange to wander off and get an ice cream.

[10]     In  my  view,  a  jury  would  be  entitled  to  find  the  Crown's  submissions plausible.  Mr G  's presence with Mr Nourian, carrying two of his cellphones and  with  the  written  reference  to  the  hotel,  could  fairly  be  characterised  as suspicious.   But there is, of course, a gulf between suspicion and proof beyond reasonable doubt.   The sparse facts I have recounted would not, in my judgment, enable a jury properly to conclude that Mr G  's explanation for his presence outside the hotel is not reasonably possible.

[11]     Accordingly, I find that no jury properly directed could reasonably convict

Mr G   on the evidence which has been put before me.  I direct that Mr G   be discharged on the count in the indictment.

Brewer J

Solicitors:

Meredith Connell (Auckland) for Crown

Eb Leary (Auckland) for Accused