R v Harris

[2008] NZCA 298

IN THE COURT OF APPEAL OF NEW ZEALAND

CA553/2007
[2008] NZCA 298

THE QUEEN

v

RODERICK SIDNEY HARRIS

Hearing:24 June 2008

Court:Baragwanath, Rodney Hansen and Harrison JJ

Counsel:C B Wilkinson-Smith and L M Wansbrough for Appellant

M D Downs and S P Symon for Crown

Judgment:13 August 2008 at 3pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS

Harrison and Rodney Hansen JJ  [1]
Baragwanath J  [46]

HARRISON AND RODNEY HANSEN JJ

(Delivered by Harrison J)

Introduction

[1]        Mr Roderick Harris appeals against his conviction in the High Court at Auckland on counts of manufacturing, offering to supply and conspiring to supply methamphetamine.  He does not appeal against his sentence of five-and-a-half years imprisonment.

[2]        Mr Harris was one of ten people charged jointly and separately with a range of drug dealing offences in a trial before a jury which lasted about 20 weeks in early 2007.  He appeals on the grounds that the trial Judge, Allan J, erred materially, first, in his summing up to the jury on one count; and, second, in directing the trial to proceed with ten jurors at the beginning of its seventh week. 

(1)      Misdirection

[3]        The first ground of appeal advanced by Mr Christopher Wilkinson-Smith, who did not appear for Mr Harris at trial, is that the Judge misdirected the jury in fact on the count of manufacturing methamphetamine.  The Crown accepts that the Judge erred.  The question is whether a miscarriage of justice arose as a result.

[4]        Before considering this argument, we should give the Judge’s error proper context.  His summing-up directed on 20 charges, some joint and the others separate.  Crown counsel had earlier addressed the jury for more than a week, as had defence counsel collectively.  The summing-up was delivered over two days and exceeds 100 pages of transcript.

[5]        The evidential basis for the Crown’s case against Mr Harris on the charge of manufacturing methamphetamine was primarily intercepted telephone and text communications to which he was a party on 31 October 2004, together with an admission that he had extracted pseudoephedrine about the time of the alleged manufacturing.  The Crown’s original proposition was that Mr Harris manufactured methamphetamine by two possible methods: either by producing fresh methamphetamine from a new supply or supplies of pseudoephedrine; or by reworking or re-crystallising the remnants of previous manufacturing operations.

[6]        The Crown’s evidence on the second hypothesis included three small hand-written pages of crude and cryptic notes.  They appear to prescribe the process of manufacturing methamphetamine by re-crystallisation.  The notes were inside a wallet belonging to Mr Harris which was found on a street in Whangarei on 24 March 2004.  The wallet and its contents had remained continuously in the custody of the police at Whangarei from the time of discovery until after Mr Harris was arrested. 

[7]        Allan J discussed this evidence briefly in summarising the Crown’s case against Mr Harris as follows:

[170]    When Mr Harris was apprehended he was in possession of three sheets…