R v Hines
[2017] NZHC 437
•14 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-007734 [2017] NZHC 437
THE QUEEN
v
WILLIAM HINES
TE HERE MAIHI MAAKA TRAVIS JAMES SADLER
THOMAS GORDON EDWARDSON FALCO BROUQ CELLAH MAAKA JOHN GERARD VIJN
PETER FRANCIS ATKINSON ALLISTER DAVID VOUSDEN SUNNY MARIE LEE HOHEPA
Hearing: 7 February - 10 March 2017 Counsel:
B R Northwood and F M T Culliney for Crown
A J Holland and K H Maxwell for defendant Hines
A J Maxwell-Scott and S Lack for defendant T Maaka
R M Mansfield and Q Duff for defendant Sadler
M E Goodwin and R J McCausland for defendant Edwardson
S N B Wimsett and C Taylor for defendant F Maaka
D G Young and A S Bloem for defendant Vijn
M P Hislop and A Shendi for defendant Atkinson
D M M Dickinson and A C Cresswell for defendant Vousden
A M M Ives for defendant HohepaJudgment:
14 March 2017
JUDGMENT OF DOWNS J (re: s 147 applications)
This judgment was delivered by me on Tuesday, 14 March 2017 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
R v HINES & ORS [2017] NZHC 437 [14 March 2017]
Table of Contents
Para No
Background [1] Charges 1–5, and 13: money laundering [4] An amendment to charge 4 [15] Charges 6, 7 and 8 [17] Charges 17–24 [42] Charges 9 and 10 [56] Charge 11 [64] Charge 14 [69] Charge 12 [73] Charges 15 and 16 [79] Charge 25 [86] Charge 28 [93] Amendment to charge 28 [95] Addendum [96]
Background
[1] The defendants face a total of 28 charges contrary to the Misuse of Drugs Act
1975, Arms Act 1983 and Crimes Act 1961. The charges’ unifying theme is methamphetamine; more particularly, its manufacture and distribution. Much of the offending is alleged to have been committed under the auspices of the East Chapter of the Head Hunters gang. Mr Hines is the primary defendant. He is alleged to been one of the East Chapter’s two leaders at the relevant time—and the most serious offences’ architect. There is (contested) evidence Mr Hines was an East Chapter leader between 2013 and 2015, and other evidence which implies his orders were
unquestionably followed.1
[2] It is common ground Mr Sadler, Mr Te Here Maaka and Mr Falco Maaka were patched members of the gang, and Mr Edwardson a prospect. Mr Edwardson is Mr Sadler’s and Ms Hohepa’s father. Mr Vousden, Mr Atkinson and Mr Vijn are
better introduced through circumstance.
1 For example, on 10 April 2015 Mr Edwardson was driving north to Whangarei. With apparent reference to Mr Hines, Mr Sadler told Mr Edwardson “the bro” wanted to see Mr Edwardson “ASAP”. Mr Edwardson called Mr Hines later that morning to say he was “heading back down”. Mr Hines told Mr Edwardson to “Come here now” as Mr Edwardson had “fucked up”. Mr Edwardson replied, “Oh hell. Oh okay. Yep”.
[3] At the conclusion of the Crown case, all defendants sought discharges pursuant to s 147 of the Criminal Procedure Act 2011 of at least some of their respective charges. Related principle is well known. It is sufficient to observe the test is whether a properly directed jury could reasonably find guilt established to the criminal standard.2 I ruled on the applications the next day. These are my reasons.
Charges 1–5, and 13: money laundering
[4] Charges 1–5 allege Mr Hines and Mr Vousden committed a series of money laundering transactions between 9 February 2012 and 4 July 2014. Charge 13 alleges like offending on or about 28 April 2015. The Crown contends Mr Hines acquired property through criminal offending and more particularly, from the sale of controlled drugs, manufacture of controlled drugs, or both; and he and Mr Vousden dealt with the property for the purpose of concealing its source, location or Mr Hines’ ownership. Charges 1, 2, 3 and 5 relate to cars: a Chevrolet Camaro, Ford Thunderbird, Ford Galaxie and Dodge Challenger. Charge 4 concerns realty.
[5] Mr Vousden is not a member of the Head Hunters gang. He owns and operates Ellerslie Collision Repairs, which, as its name implies, is a panel-beating business. Its premises are a short distance from those of the Head Hunters, both of which are on Marua Road in Auckland. The intercepted conversations and surveillance footage imply a close connection between Mr Hines and Mr Vousden, and a related connection between Mr Vousden and the Head Hunters gang. When interviewed by the Police, Mr Vousden said Mr Hines was a “good friend”. This aspect is, of course, admissible only against Mr Vousden. All but one of the cars underlying the charges were found at Ellerslie Collision Repairs or adjacent premises seemingly connected to Mr Vousden.
[6] There is a respectable body of evidence Mr Hines and Mr Vousden acted in concert to conceal Mr Hines’ property as if it were Mr Vousden’s. So, for example, on 27 March 2015 Mr Vousden calls Mr Hines to ask whether Mr Hines wants Mr Vousden to take one of the cars home to give it a run. Mr Hines responds, “well
it’s in your name isn’t it”? Mr Vousden replies “yeah”. Mr Hines then gives
2 R v Flyger [2001] 2 NZLR 2 NZLR 721 (CA) and Parris v Attorney-General [2004] 1 NZLR
519 (CA).
Mr Vousden permission to take the car home but says “don’t damage it”. Another example is on 1 May 2015. Mr Vousden calls Mr Hines to ask if he is “able to use one of the nice cars to go home in tonight”. Mr Hines says “no, don’t use them. I don’t wanna be using them just yet”. Consequently, there is sufficient evidence from which the jury could infer Mr Hines and Mr Vousden dealt with all of the cars (dealing is defined very broadly by s 243(1) of the Crimes Act 1961), and these dealings were for the purpose of concealing the cars’ source, location and Mr Hines’ ownership.
[7] The difficulty, however, in relation to charges 1, 2, 3 and 5 is, as Ms Maxwell submits, an inadequacy of evidence the cars were derived from the criminal offending alleged by the Crown so as to constitute property that is the proceeds of a serious offence in terms of s 243 of the Crimes Act:
(a) While it would have been open to the Crown to advance the case on the basis the cars were the proceeds of serious criminal offending without further refinement, a course expressly provided for by the statute,3 the Crown has chosen to allege Mr Hines acquired all of the vehicles through the sale of controlled drugs, manufacture of controlled drugs, or both. However, it has adduced insufficient
evidence Mr Hines or related defendants were committing offences of this nature at the time Mr Hines acquired the vehicles in relation to charges 1, 2, 3 and 5.
(b)There is evidence from a financial analyst then employed by the Police in relation to Mr Hines’ known income between 1 April 2011 and 31 March 2015. But the analysis is not full-blooded in that Ms Chen did not testify the cars found at Ellerslie Collision Repairs or adjacent premises could not have been purchased within Mr Hines’ known income. Rather, the witness said she was unable to find any transactions in relation to the cars in Mr Hines bank statements, including those of his apparent legitimate business. And while it may
perhaps be open to the jury to conclude, having regard to Ms Chen’s
3 Crimes Act 1961, s 243(5). And note the expansive definition of “serious offence” in s 243(1).
evidence, there is no obvious means by which Mr Hines could purchase the cars, all of these charges pre-date Mr Hines’ alleged drug offending by at least 10 months.
(c) As observed, Ms Chen’s analysis is not a financial analysis as such.
Rather, she has identified Mr Hines’ declared income from IRD records and related bank statements. In this sense the case is different from the many cases in which a witness with accounting expertise conducts a complete financial analysis of a defendant’s alleged financial position, and then identifies unexplained expenditure and
related acquisitions. 4
[8] The evidence remains inadequate even if the case is approached by reference to an allegation of generic serious offence proceeds as contemplated by the statute (cf criminal proceeds vis-à-vis methamphetamine-based offending). Difficulties [4](b) and [4](c) remain in circumstances in which the Crown effectively invites supposition as to how the cars’ purchase was funded.
[9] However, the position in relation to charges 4 and 13 is different. Charge 13 relates to a Chevrolet Corvette found at premises next to Ellerslie Collision Repairs on 28 July 2015. Several conversations refer to a Corvette, including one on 25 June
2015 in which the person speaking to Mr Hines says she would be able to keep up with him in a car if she had “your Corvette”. Mr Hines, apparently joking, replies: “Oooh, I haven’t got a Corvette”. The other speaker laughs. The conversation then ends.
[10] Mr Vousden registered the Corvette in his name on 28 April 2015. The evidence of the previous registered owner, Mr Le Roux, was read to the jury. Mr Le Roux said the car was never his but he registered the car in his own name (on
19 September 2014) because Mr Vousden had not paid for repair work on the car completed by Mr Le Roux that month. Mr Le Roux said Mr Vousden later paid the bill and again took possession of the Corvette. Following the Police search, it was
sold by the Official Assignee for $36,000.
4 For example, see Deadman v R [2017] NZCA 16.
[11] Contrary to Ms Maxwell’s submission, the jury could reasonably infer the Corvette represented the proceeds of serious offending or more specifically, methamphetamine-derived offending because:
(a) A conversation involving Mr Vousden on 27 March 2015 implies the Corvette was Mr Hines’ property. Mr Hines is charged with manufacturing methamphetamine on 18 April 2015 and possessing a large quantity of that drug for supply on 4 June 2015. As discussed later in this judgment, there is sufficient evidence to support these and related charges.
(b) Mr Hines’ alleged drug offending is proximate to the Corvette’s
registration. As observed, it was registered to Mr Vousden on 28 April
2015.
(c) Ms Chen could not find any bank or related transaction in relation to the Corvette in either Mr Hines’ or Mr Vousden’s records, meaning it had not been funded from any obvious source.
(d) The Corvette was not of insignificant value given its later sale by the
Official Assignee for $36,000.
(e) Mr Vousden told the Police Ellerslie Collision Repairs was not
“thriving” as a business.
[12] As foreshadowed, I reach the same conclusion in relation to charge 4, which concerns a property on Old Wairoa Road, Papakura, seemingly purchased by Mr Vousden in September 2014:
(a) Several conversations imply the property was Mr Hines’, including one in which Mr Hines says just that on 7 April 2015 with reference to a tradesman coming to the property: “I’m the owner of the fucken place”. As observed, Mr Hines is charged with drugs offending from
18 April 2015 and there is sufficient evidence to support those charges.
(b) Mr Vousden entered a contract to purchase the property on 20 June
2014. The purchase price was then $320,000. Strangely, the price
was later increased with Mr Vousden’s apparent agreement to
$420,000.
(c) Settlement occurred on or about 25 September 2014, without any mortgage finance. That was not more than eight months before Mr Hines’ first alleged drugs offence.
(d) Large amounts of cash were used to facilitate settlement. $20,000
cash was deposited to Mr Vousden’s bank account on 16 September
2014. $30,000 cash was deposited on 19 September 2014. $30,000 cash was deposited on 20 September 2014. And, $83,100 cash was deposited to Mr Vousden’s bank account on 24 September 2014. These monies were used to fund a bank cheque for just over $163,000 on 25 September 2014.
(e) The use of cash is unusual. Most people do not buy realty in this manner.
(f) Ms Chen could not find any other record of the transaction in either Mr Hines’ or Mr Vousden’s records. Moreover, their known income was not obviously sufficient to sustain the purchase price. And as observed, Mr Vousden told Police Ellerslie Collision Repairs was not “thriving”.
(g)Finally, Mr Vousden had difficulty recounting to the Police key detail about the property, including the purchase price and whether he had required mortgage finance.
[13] The clearest evidence of “dealing” in connection with the land and Corvette arises after each is acquired by Mr Vousden, and by virtue of intercepted communications from late March 2015 on. Mr Dickinson and Ms Maxwell submitted there was insufficient evidence in relation to this ingredient for the charges to remain with the jury. I disagree. The circumstances set out above permit the inference Mr Hines and Mr Vousden dealt with the land and Corvette in concert, and by transacting each in Mr Vousden’s name so as to conceal Mr Hines’ connection. Mr Vousden’s apparent lack of means to afford either buttresses this conclusion.
[14] The discharge applications in relation to charges 1, 2, 3 and 5 are allowed, but those in relation to charges 4 and 13 are dismissed.
An amendment to charge 4
[15] Charge 4 was originally framed on or about 20 June 2014, the date Mr Vousden entered the contract to purchase Old Wairoa Road. Given the evidence and corresponding Crown case, I amended the charge before the jury retired so it alleged an offence between 20 June 2014 and 25 September 2014.5 As will be recalled, settlement occurred on 25 September 2014.
[16] Mr Holland opposed the amendment, citing prejudice on the basis he had closed to the jury the original charge date preceded both the intercepted communications and alleged drug offending by months. I rejected this argument because the amendment did not compromise Mr Holland’s closing submission to the jury. And more importantly, because the amendment did not affect Mr Hines’ or Mr Vousden’s case in relation to the money laundering charges more generally.
Charges 6, 7 and 8
[17] Charge 6 alleges Mr Hines, Mr Te Here Maaka, Mr Sadler, Mr Edwardson, Mr Falco Maaka and Mr Atkinson manufactured approximately a kilogram of methamphetamine on or about 18 April 2015. Charges 7 and 8 allege related offending by Mr Vijn: possession of toluene and an electric water distiller with the
requisite intent.
5 Criminal Procedure Act 2011, s 133.
[18] The Crown case is that the methamphetamine was made at a property in Withers Road (in a semi-rural part of Auckland), which was occupied by a female friend of Mr Te Here Maaka. The intercepted communications essentially contain a map to the scene. Swabs taken from the property on 28 July 2015 revealed methamphetamine at a level 10 times higher than those expected from smoking methamphetamine, or requiring between 1,000 and 4,500 individual smoking events to replicate. However, the ESR scientist, Mr Russell, acknowledged his analysis did not itself establish methamphetamine had been made at Withers Road.
[19] The background is important. On 10 April 2015 Mr Hines and Mr Sadler met with Mr Jia Sun. That meeting had been arranged urgently by Mr Sadler for the “missus”, a reference to Mr Hines. There is evidence this is one of Mr Hines’ nicknames and he answered to it. Mr Sun had suggested he was unavailable, but Mr Sadler told him: “No, me and my missus are waiting for you to arrive now, come now.” Mr Hines, Mr Sadler and Mr Sun met at approximately 1 pm at a Nandos restaurant (they were being secretly watched by the Police).
[20] Mr Sadler met with Mr Sun twice again that day. It is common ground
Mr Sun supplied Mr Sadler on 10 April with 20 sets of Contac-NT, being
4.46 kilograms of that substance, worth approximately $170,000:
(a) Mr Sun’s conviction for supplying pseudoephedrine was placed in evidence pursuant to s 49 of the Evidence Act 2006.
(b)Through counsel, Mr Sadler accepts he received the pseudoephedrine from Mr Sun.
(c) A telephone conversation between Mr Sun and Mr Sadler refers to
“20 sets”.
[21] CCTV footage and surveillance evidence are capable of implying Mr Sadler paid for the Contac-NT at the first of his two additional meetings with Mr Sun, and before he collected the Contac-NT that evening. As observed, Mr Hines was at the
1 pm meeting. A related conversation is capable of implying Mr Hines directed this
transaction. Mr Sadler told Mr Sun: “It’s for the missus, it’s not for me.” There is agreement this and other relevant conversations engage the co-conspirators rule; see s 22A of the Evidence Act 2006.
[22] The alleged manufacture took place eight days later. The intercepted communications imply a heightened level of East Chapter activity in the period between 10 and 18 April. Mr Northwood responsibly accepted the jury could not discern exactly what is being discussed, but the nature of the conversations is consistent with the preparation for a significant, imminent event. These conversations involve Mr Sadler, Mr Edwardson and Mr Hines. Materially, there are apparent progress reports to Mr Hines. One or more conversations suggest Mr Hines was frustrated at the lack of progress. For example, on 11 April Mr Sadler informs Mr Hines: “Yeah he’s still working on it, bro, fucking hell.” Mr Hines responds: “Whaddya mean is he?” “Oh fuck me days, man.” Mr Sadler assures Mr Hines someone is working on it. Mr Hines responds: “Yeah how long? Another whole night and a whole day?”
[23] On 12 April Mr Sadler calls Mr Sun to arrange another meeting with the “missus”. Mr Hines can be heard in the background. Mr Sadler tells Mr Sun to hurry up, as “the Missus wanna see you”. A related conversation suggests Mr Hines, who is also known as “Bird”, had business he had to “sort out urgently”.
[24] In a conversation on 14 April, Mr Edwardson and Mr Sadler discuss the fact there are “some parts missing”. Mr Edwardson notes “there were some other parts that were supposed to come with it”. Mr Sadler responds, the “brown bag, the green thing, and the fucken thing”.
[25] Conversations on 18 April into the early hours of 19 April imply methamphetamine is being made. Mr Atkinson asks for a piece of equipment consistent with a water distiller. There is expert evidence this is required towards the end of the process. In the course of the same conversations, Mr Vijn offers Mr Atkinson toluene. Unlike the gang members’ conversations, those between Mr Atkinson and Mr Vijn are unguarded. For example, Mr Atkinson says he needs
an electric thing with a fan in the lid. He immediately laments: “I’ve said it now so I
hope they’re not listening”. A clear picture emerges of a “cook” being underway.
[26] The intercepted communications and polling evidence imply Mr Falco Maaka was present throughout at Withers Road. His communications suggest frustration at the time that is being taken, for example: “Babe im fucn stk hea again this shit fukn sux…”. There is evidence Mr Te Here Maaka was also present for a period. He provides a phone to Mr Atkinson, the alleged cook, who then speaks with Mr Vijn. As noted, Mr Vijn offers to supply toluene to Mr Atkinson. The evidence is capable of implying he obtained the distiller, albeit that conclusion is not foregone.
[27] The jury could infer the phone supplied by Mr Te Here Maaka to Mr Atkinson was dedicated to the manufacture of methamphetamine; it was not used again. Relevantly, Mr Te Here Maaka tells a third party: “Send him down there now
‘cos tell him he can’t ring this phone anymore. I was told after he rung, snap the phone.” More general intercepted communications refer to the need for phone security. And in the early hours of 19 April 2015, Mr Falco Maaka admonishes someone for “fucken broadcasting our business”.
[28] The totality of relevant evidence permits a reasonable jury, properly directed, to infer:
(a) Mr Atkinson was the principal offender, “the cook”. And, he had been engaged because of his experience in connection with the manufacture of methamphetamine. Propensity evidence in relation to Mr Atkinson’s tendency to manufacture methamphetamine and possess related precursor substances, equipment and materials is before the jury.
(b)Mr Falco Maaka assisted the cook by providing on-site supervision of the manufacturing process, and as a representative of the East Chapter of the Head Hunters gang.
(c) Mr Te Here Maaka provided on-site assistance, particularly in providing a dedicated mobile phone used by Mr Atkinson in connection with the manufacture of methamphetamine.
(d)Mr Vijn was in possession of toluene and after some effort, a distiller, and both were intended for use in connection with the manufacture of methamphetamine. Again, his and Mr Atkinson’s communications are relatively unguarded.
(e) This was a substantial commercial operation. There is expert evidence 4.46 kilograms of Contac-NT could produce a kilogram of methamphetamine.
[29] I reject the submission the evidence is not capable of proving methamphetamine was made at Withers Road. This submission tended to focus on the ESR evidence to the exclusion of the evidence more generally. It is axiomatic the jury may have regard to all relevant evidence in determining whether methamphetamine was made at the alleged scene; the jury is not confined to the evidence of Mr Russell, the ESR scientist, or the assumptions he made in conducting his analysis.
[30] I reject also the related submission the evidence could not establish the offending of each of these defendants in connection with Withers Road. Defence counsel tended to focus on evidence allegedly missing from the Crown’s arsenal, for example, surveillance footage of Withers Road, fingerprint analysis and so on. However, the inquiry must be confined to what evidence is available, and what it is capable of establishing, if anything. Moreover, counsel’s submissions were something of a jury address. The inquiry at this stage is not whether each defendant is guilty. Rather, it is whether the evidence could reasonably lead to a conclusion of guilt to the standard of beyond reasonable doubt. The applications of Mr Atkinson, Mr Vijn and Messrs Maaka are dismissed.
[31] This leaves Mr Sadler, Mr Hines and Mr Edwardson.
[32] The case against Mr Edwardson is materially weaker than the case against the other defendants in relation to this charge; the evidence against him is limited to intercepted conversations between 10 and 18 April in which Mr Edwardson appears to provide general assistance. Unlike Mr Hines and Mr Sadler, Mr Edwardson had no obvious role in sourcing the very large amount of Contac-NT intended for conversion in the manufacturing process. And unlike the other defendants above, there is no evidence to imply Mr Edwardson was at Withers Road on 18 or 19 April. Indeed, there is evidence he was at a tangi in Cambridge until the afternoon of the
18th. Mr Goodwin submitted Mr Edwardson’s modest gang rank of prospect made it
less likely he was a party. That, however, is a jury issue. So too his age (there is expert evidence Mr Edwardson is old for a gang prospect).
[33] As against this, Mr Edwardson is involved in a number of conversations between 10 and 18 April which, in context—and however guarded—appear to be directed at key preparations for the manufacturing offence on the 18th. These conversations are capable of proof in terms of s 66(1) of the Crimes Act Mr Edwardson:
(a) Knew the essential nature of proposed offending (the manufacture of methamphetamine).
(b) Intended to assist that offending.
(c) Did so by locating or helping to locate equipment used on the 18th.
[34] For Mr Sadler, Mr Duff submitted it was not sufficient in law for Mr Sadler to be guilty of manufacturing methamphetamine as a party by virtue of his receipt of Contac-NT from Mr Sun on the 10th, even if that substance had in fact been used to make methamphetamine on the 18th. I agree. But the issue then becomes one of proximity and intent: if Mr Sadler actually assisted the manufacture of methamphetamine on the 18th by sourcing the critical component (pseudoephedrine); and if Mr Sadler knew of the intended manufacture and intended, by his actions, to assist in the commission of that offence, what might otherwise have been liability under s 12A of the Misuse of Drugs Act 1975 becomes party liability under s 66(1)
of the Crimes Act for the substantive offence of manufacturing methamphetamine. I do not read the cases cited by Mr Duff as holding otherwise, all of which were considered by Keane J in R v Filer,6 and treated by His Honour, correctly in my respectful view, as fact-specific.
[35] Further observation may be important. First, the mere fact liability might otherwise arise under s 12A cannot operate to exclude liability for the more serious offence of manufacturing methamphetamine (as a party). Many, criminal cases involve facts which are amenable to multiple charges in relation to the same transaction (think, for example of the charging choices that arise when a weapon is used to inflict bodily harm, to wit: assault with a weapon; assault with intent to injure; injuring with injure to injure and so on).
[36] Second, s 12A was not enacted to restrict liability for drugs offending but to expand it by ratifying the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.7 Consequently, it would be ironic if s 12A liability exercised gravitational pull against the reach of orthodox party liability precepts, particularly when s 66 was enacted to abolish the common law distinction between offenders at the scene of the offence at the time of its
commission (being either a principal in the first degree or second degree) and an accessory before the fact (a party who assists or encourages a principal to commit a crime, but who is not present when the offence is committed).
[37] Third, it bears repeating there is evidence which is capable of establishing:
(a) Mr Sadler received the Contac-NT from Mr Sun, intending it be used in the Withers Road manufacture. Contac-NT has only two criminal uses. It can be sold or made into methamphetamine. While there is evidence Mr Sadler was in the habit of selling pills, there is no
evidence he was in the habit of selling Contac-NT.
6 R v Filer HC Auckland CRI-2011-404-47, 2 December 2011 at [26]–[45].
7 See Misuse of Drugs Amendment Act (No 3) 1998 (the Amendment Act), and part 33 of the Explanatory Note to the Statutory Amendment Bill (No 2) 1997, of which the Amendment Act was initially part.
(b)Mr Sadler intended to assist and did assist that manufacture, primarily by sourcing over four kilograms of Contac-NT, but also by helping to locate other equipment used in the manufacture, and providing progress reports to Mr Hines.
(c) Mr Sadler did so within the command structure of the East Chapter of the Head Hunters gang, and as second-in-command to Mr Hines, to whom he reported.
(d)The Withers Road manufacture was orchestrated by the East Chapter of the gang, a feature underscored by Mr Falco Maaka’s apparent supervision of the entire cook, the use of premises connected to Mr Te Here Maaka (through his female friend) and Mr Te Here Maaka’s scene attendance, at least for a period.
[38] The case against Mr Hines is that he directed the operation; indeed, that he procured it. Mr Holland submitted there was inadequate evidence of Mr Hines’ criminal participation. He invited particular attention to the absence of any direct linkage between Mr Hines and either Mr Atkinson or Mr Vijn, an absence of relevant communication between Mr Hines and Te Here or Falco Maaka in connection with the offence, and Mr Hines’ Withers Road absence too.
[39] I am satisfied the jury could reasonably find Mr Hines guilty of charge 6. The evidence is capable of implying he was the driving force behind the Withers Road offending, albeit from behind the scenes. As observed above, party liability does not require scene presence. And those who allegedly procure an offence will often not be present when it is committed. Moreover, the (now repealed) distinction between principals in the first or second degree and an accessory before the fact existed long before technology could reliably accommodate communication between principals at the scene and accessories elsewhere. So, the mere fact of an absence of communication between Mr Hines and say, Mr Atkinson or Mr Falco Maaka, cannot be determinative.
[40] The evidence suggests this was Mr Hines’ operation. Mr Sadler essentially said as much to Mr Sun. Mr Sadler reported progress to Mr Hines in the days leading up to the manufacture. And, East Chapter personnel were at Withers Road when methamphetamine was allegedly made. The evidence implies they assisted the commission of that offence. It should be recalled the co-conspirators rule applies to
both the (hearsay) statements of others and their actions.8 My conclusion in relation
to Mr Hines on this charge should also be understood with reference to charges
17-24, for; a unity of circumstance arguably pervades the alleged Withers Road offending and events in connection with these later charges.
[41] The applications of Mr Hines, Mr Sadler and Mr Edwardson are dismissed.
Charges 17–24
[42] On the morning of 4 June 2015, Police executed a search warrant on a storage unit at Able Storage. Inside the unit was a black van, with darkened, reinforced windows and a cage-like interior. The van was registered to Ellerslie Collision Repairs. Inside the van was:
(a) 136.5 grams of methamphetamine (bagged in five one-ounce bags), worth approximately $60,000.
(b) Approximately 33 litres of hypophosphorous acid, worth $65,000.
(c) Nine kilograms of iodine, worth somewhere between $9,000 and
$45,000.
(d)Five firearms, including a pistol. The pistol was wrapped in a blue bandana, in turn in a case containing another firearm.
(e) A considerable amount of ammunition.
8 See Qui v R [2007] NZSC 51, [2008] 1 NZLR 1; and R v Messenger [2008] NZCA 13 at [8].
The hearsay limb of the principle is now provided for by s 22A of the Evidence Act 2006. The conduct limb has no express statutory provision, but is presumably governed by ss 7 and 8 of the Evidence Act.
[43] Charges 17–24 allege Mr Hines, Mr Sadler, Mr Te Here Maaka and Mr Edwardson possessed these articles contrary to ss 6(1)(f) and 12A of the Misuse of Drugs Act 1975, and s 45 of the Arms Act 1983.
[44] The storage unit was rented by Ms Nadine Stone on 18 April 2015, the same day methamphetamine was allegedly made at Withers Road. Ms Stone worked at Harcourts. She signed the rental agreement and recorded “Storage of a van” in answer to its question, “Intended Use of Unit?” Ms Stone paid a total of $600 cash for the first month’s rental and bond. The manager of Able Storage said approximately two hours later two Maori men arrived and drove a van into the unit. The event stayed with him because “Ms Stone struck me as an attractive woman and these two rough looking Maori guys came not long afterwards”. The intercepted communications imply Ms Stone was a friend of Mr Sadler and an acquaintance of Mr Te Here Maaka.
[45] There is evidence both defendants had a role in paying the rent for the unit
($410 per month). For example:
(a) On 27 April 2015, Mr Sadler calls Ms Stone to ask “when do we pay
… for the um, storage place?” Ms Stone tells Mr Sadler she paid the
rent for the first month and the next payment is due on 14 May.
(b)On 13 May 2015 Ms Stone sends Mr Maaka a text message: “That storage is due tomorrow”. The same day Mr Maaka tells Ms Stone he needs to catch up for some money to pay for that one in connection with “Travis” (Mr Sadler).
(c) Mr Sadler was incarcerated from 25 May 2015. That evening Mr Hines asks Mr Sadler, who appears to have had access to a mobile phone in prison, how they were going to “pay for the … rent for that thing?” Mr Sadler replies, “the bro knows” and arrangements are in place. Mr Hines responds, “I don’t want the Police taking it”. Mr Sadler appears to reassure Mr Hines: “I won’t let that happen”.
(d) The jury could infer “the bro” is Mr Te Here Maaka, for, on 28 May
2015 he asks Ms Stone “when’s the rent due … on the shed?” In that context Mr Maaka notes, “Travis isn’t around”.
[46] There is evidence Mr Edwardson visited the unit. On 28 May he and his son, Mr Sadler, discuss how Mr Sadler’s partner may need to put some property in storage until Mr Sadler is released from prison. Mr Edwardson observes there are “spare storage units at that place”. This prompts Mr Sadler to ask, “Has that been all fixed up?” Mr Sadler appears to answer his own question by saying “the big bro will do it”. He then asks Mr Edwardson: “Whose been going there? You?” Mr Edwardson replies, “Nah, just me”. Mr Sadler asks, “Oh yeah, all good?” Mr Edwardson responds tersely, “Yeah”, and the conversation ends.
[47] One final pre-search conversation should be mentioned. On 13 May 2015, Ms Stone directly asks Mr Te Here Maaka, “What’s in there?” He replies: “You don’t need to know”. Ms Stone continues to press Mr Te Maaka. He says, seemingly joking, “A dead body” and then adds, “No, it’s nothing dodgy”.
[48] Police discovery of the van set in train a series of relevant communications that day:
(a) Ms Stone tries urgently to contact Mr Te Here Maaka. When he learns of Ms Stone’s arrest, Mr Maaka says, “I’ll sort it out, I’ll sort it out.”
(b)Mr Edwardson reports to Mr Sadler the “big bro” is “in a bit of a hurry” in relation to the “girl” who has “just got of the Police station”; “something to do with the lock up”. Mr Sadler asks his father, “So did you get rid of it?” Mr Edwardson replies: “I’m tryn’a fucken.”
(c) Mr Hines, Mr Sadler, and Messrs Maaka confer that evening just after
7 o’clock. In an apparent reference to Ms Stone, Mr Hines says to Mr Sadler his “affair’s gone bad”, and remarks she and Mr Sadler will be in prison “for a long time”. Mr Maaka puts to Mr Sadler, “You go
back inside and leave us to fend for ourselves.” “Are we on our own, are we?” Mr Hines says “They’re just waiting for the fingerprints to come back”. Mr Sadler responds: “Oh fucken hell”. Mr Maaka says, “I don’t even wanna talk on this phone.” The tone of the conversation is surprisingly jocular but it would be open to the jury to consider its material aspects are relevant to the issue of possession.
[49] No relevant fingerprints were found on the van or its contents. However, the blue bandana around the revolver was found to contain DNA. The major depositor of the DNA is at least one million million times more likely to be Mr Hines than another person selected at random from the New Zealand population, hence there is “extremely strong scientific support for the proposition that most of the DNA [on the bandana] originated from Mr Hines”. Unsurprisingly, the expert, Ms Lisa Melia of the ESR, could not say when or how Mr Hines’ DNA came to be on the bandana. And she acknowledged the presence of other minor contributors of DNA, including an uncharged Head Hunters gang member.
[50] To return to the intercepted communications, on the evening of 4 June Mr Sadler and Mr Edwardson discuss what “blondie” (Ms Stone) might have said to the Police, surmising Police must have been watching the unit. In a conversation on
17 June, Mr Sadler and Mr Edwardson discuss the absence of “hard evidence” in relation to “the black thing” seemingly registered in the name of Ellerslie Collision Repairs, noting any charge “won’t stick”. Mr Sadler says “But there was nothing in it aye?” Mr Edwardson replies “Ooh yeah. Yeah.” Finally, on 8 July 2015 the pair discuss how things had gone quiet in the wake of a female being charged, presumably Ms Stone. Mr Edwardson says, “everything’s been quiet … it’s been three weeks already. Nearly four, I’m still not fucken satisfied that nothing, you know. You alright?” Mr Edwardson appears to be concerned at the sound of a phone clicking; Mr Sadler reassures his father the background noise is only Mr Sadler’s clicking of a pen.
[51] The defendants contend the evidence is insufficient to establish the twin ingredients of possession in relation to the van’s contents, namely knowledge and
control. Again, alleged evidential shortcomings are identified such as the absence of
the defendants’ fingerprints at the scene.
[52] I reject this submission. The totality of evidence permits the conclusion, by inference, the defendants knew what was inside the van and intended to exercise control over its contents. To recapitulate, there is evidence Mr Sadler and Mr Te Here Maaka were responsible for paying the rent for the unit.9 The jury could conclude Mr Sadler reported these arrangements to Mr Hines who, it will be recalled, wanted to know how rent was going to be paid in Mr Sadler’s absence, and
who did not want Police taking “it”. Mr Sadler assured Mr Hines he would not let that happen. The jury could also conclude Mr Edwardson had been going to the unit, for, on one view, that is what he told his son he had been doing. Moreover, the intercepted communications imply concern on the part of all four defendants over Ms Stone’s arrest, what she might have told Police, and what their investigations may reveal. Mr Hines appears to suggest Mr Sadler and Ms Stone are guilty in a conversation which tends to incriminate all four defendants. And as observed, Mr Hines was the major contributor of the DNA on the bandana found around the revolver in the van.
[53] Broader circumstance is relevant too. The unit was rented on 18 April, the day a kilogram of methamphetamine was allegedly made at Withers Road. Inside the van was 136.5 grams of methamphetamine, approximately 33 litres of hypophosphorous acid and nine kilograms of iodine—in short, a large amount of methamphetamine and two chemicals, also in large quantities, used to make that drug. Everything in the van was neatly packed away. The five bags of methamphetamine were in a plastic container surrounded by rice, presumably to keep them dry. Two of the firearms were in a large black sports bag. Another was in its own special case. The two remaining firearms were in a second firearms case, including the revolver. The ammunition was in its own bag. The van was protected
by caged windows and an internal cage. Its contents were valuable, including the
9 Mr Sadler’s incarceration from 25 May does not preclude a guilty verdict. Mr Duff did not contend otherwise. If the jury were to conclude Mr Sadler intentionally exercised control through Ms Stone, an innocent agent (see R v Smith (1993) 11 CRNZ 294 (HC)), or jointly with another defendant or defendants (by having a say over what was to happen to the articles in the van), Mr Sadler would be in possession of the van’s contents, assuming of course his knowledge was also inferred.
firearms. There is evidence one alone retails for $13,000. Standing back, the jury could infer the concealment of the articles had the hallmarks of an organised criminal enterprise responsible also for the 18 April manufacture, and one in turn under the direction of Mr Hines.
[54] In reaching this conclusion, I acknowledge the prospect of conviction is uncertain. The jury may ultimately conclude the evidence does not establish possession to the criminal standard. The evidence, however, is capable of supporting this element by reference to the totality of circumstance, including the apparent linkage to the Withers Road offending.
[55] These applications are dismissed.
Charges 9 and 10
[56] Charge 9 alleges Mr Atkinson attempted to manufacture methamphetamine on or about 23 April 2015. Charge 10 alleges Mr Vijn had toluene in his possession on the same date intending that substance be used in the manufacture of methamphetamine.
[57] Unlike some of the other intercepted communications in connection with this case, those in relation to these charges are rather lucid. On the morning of 23 April
2015 Mr Atkinson rang Mr Vijn to ask the latter if he wanted a “sore nose”, inviting Mr Vijn to bring “tully” or “the Tranny” with him. Shortly thereafter, Mr Vijn called a female friend to say he was excited at the prospect of working again with Mr Atkinson, commenting “hopefully the stuff is better, just sell it and go buy some harder stuff”. The friend warned Mr Vijn against counting his chickens before they hatched.
[58] That advice appears to have been prescient, for, at 3.30 pm that afternoon, Mr Atkinson’s partner called Mr Vijn (with Mr Atkinson in the background) asking what happens if “hydrochloric goes in your eye”? Mr Atkinson’s partner explains “he’s doing it but now can’t see out of his eye”. There is discussion as to whether Mr Vijn should come to help to finish “the rest of it”. Mr Atkinson admonishes his partner saying, “shut up, don’t talk about it on the fucken phone”.
[59] Mr Vijn then speaks with his female friend who concludes Mr Atkinson is “a fucken idiot for getting HCL in his eyes”. Mr Vijn gives Mr Atkinson’s partner some medical advice: Mr Atkinson should wash his eye out with water or some chemical wash, or perhaps get into the shower. Arrangements are made to meet. Mr Vijn’s friend concludes Mr Atkinson is “fucked” and “going to go to jail”. Mr Vijn appears to share that view, observing Mr Atkinson will now be blind as well. As with other conversations in this case in which a defendant is incriminated in his absence, there is agreement the co-conspirators rule is engaged on the basis:
(a) There is reasonable evidence of a conspiracy or joint enterprise, here between Mr Atkinson and Mr Vijn.
(b)There is reasonable evidence the defendants were members of the enterprise.
(c) The statements were made in furtherance of the enterprise.
[60] There is expert evidence hydrochloric acid is employed in the final step of the manufacturing process by which crude methamphetamine (as an oil) is converted to a crystalline powder.
[61] Premises allegedly connected to the attempted manufacture (on Dominion Road) were later examined by the ESR. Swabbing revealed the presence of methamphetamine, albeit that testing alone does not establish whether methamphetamine had been made there. Hydrochloric acid was found at the property, as was an electric hotplate.
[62] Mr Hislop submits this evidence is insufficient to establish the attempted manufacture of methamphetamine. No exegesis of the law of criminal attempts is required against this background. Plainly, the evidence is sufficient to establish the charge. Indeed, it may be thought rather strong.
[63] Mr Young submits there is no evidence Mr Vijn had toluene in his possession on 23 April 2015. The answer to this submission is that the communications
between Mr Vijn and Mr Atkinson appear to reveal Mr Vijn as prepared to take toluene to Mr Atkinson for use in the manufacture of methamphetamine, in turn implying Mr Vijn’s possession of that substance. In particular, Mr Vijn does not say to Mr Atkinson he cannot help because he does not have any toluene. It is possible; of course, the jury will not find possession established to the standard of beyond reasonable doubt. But it would be open to the jury to do so.
Charge 11
[64] Charge 11 alleges Mr Edwardson supplied methamphetamine on or about
16 April 2015. The underlying communications commence with Jamie Kingi asking for “n e more?” (anymore?). Mr Edwardson replied “tonight or tomorrow”. Related communications address where the transaction should occur in relation to a “whole one”, which according to expert evidence is consistent with a gram of methamphetamine.
[65] Mr Goodwin submits there is inadequate evidence a meeting took place between Mr Edwardson and Mr Kingi, or Mr Edwardson supplied methamphetamine to him.
[66] I disagree. From approximately 8.51 pm on the evening of 16 April, Mr Edwardson invites Mr Kingi to meet him at Mr Edwardson’s daughter’s address, in relation to which he provides Mr Kingi directions. A little later that evening Mr Edwardson informs Mr Kingi he is able to supply only “a half”. Subsequent communications between the two imply they are about to meet. At 9.06 pm that evening, Mr Edwardson sends a text message to Mr Kingi saying “see you soon”.
[67] In light of the absence of communications thereafter, and more particularly, a communication from Mr Kingi asking Mr Edwardson, for example, why the meeting did not take place, a jury could infer:
(a) It did.
(b)Mr Edwardson supplied Mr Kingi methamphetamine, as had been discussed.
[68] Relevantly, two days later Mr Edwardson offered Mr Kingi, by text message,
“a huff and puff”. There is expert evidence that is code for methamphetamine.
Charge 14
[69] Charge 14 alleges Mr Edwardson procured methamphetamine on or about
6 May 2015. Mr Goodwin submits the underlying communication constitutes inconclusive evidence Mr Edwardson met his contact to obtain methamphetamine and in any event, doubt attaches as to the meaning of “half a chicken”.
[70] In context, half a chicken could reasonably be understood by the jury to mean half a gram of methamphetamine given:
(a) There is expert evidence “chicken” is code for a controlled drug.
(b) The price of $300 is consistent with half a gram of methamphetamine. (c) Other evidence implies methamphetamine is Mr Edwardson’s drug of
choice.
[71] To provide the narrative, Mr Edwardson and his contact agree to meet at a particular location: Wendy’s restaurant “out the way back to GI”, by which the jury could infer Glen Innes, and close to the bakery. The same communication implies their meeting is imminent.
[72] As in relation to charge 11, there is no communication consistent with the meeting not having occurred. Again, that meeting could be understood to be imminent. Against this background, Mr Goodwin’s submissions are jury issues.
Charge 12
[73] This charge alleges Mr Edwardson and his daughter, Ms Hohepa, procured a gram of methamphetamine on or about 20 April 2015. The charge relies heavily on intercepted communications between Mr Edwardson and Ms Hohepa that commence with a text message from her to him on the evening of 19 April 2015. Ms Hohepa asks Mr Edwardson whether he has any more “hours as Sam wants to trade”. The
text message concludes: “I gt alil bit left” (I got a little bit left). There is expert
evidence the terms “hours” is code for methamphetamine.
[74] Later communications between the pair that evening imply preparation for a transaction involving methamphetamine. The communications support the inference Mr Edwardson was to drive Ms Hohepa to meet Sam for that purpose.
[75] The last relevant communication that day is at 10.41 pm, when
Mr Edwardson informs Ms Hohepa he is approximately 15 minutes away.
[76] The next relevant communications between father and daughter do not occur until 24 hours later. Mr Edwardson and Ms Hohepa discuss meeting Sam. Ms Hohepa asks Mr Edwardson if he has “alil sumthng fr the mrnin?” (a little something for the morning?). Ms Hohepa poses the same question differently later that morning. Mr Edwardson replies “nah bayb have you” (nah babe have you?).
[77] Ms Ives and Mr Goodwin contend there is insufficient evidence their clients obtained methamphetamine from Sam, as there is no evidence they met with Sam. Ms Edwardson and Ms Hohepa’s apparent absence of methamphetamine on 21 April
2015 is also advanced as being inconsistent with the Crown thesis they had obtained methamphetamine from Sam only a day or so earlier.
[78] The latter point is not decisive for, even if correct, it would still be open to the jury to infer methamphetamine had been earlier obtained but for whatever reason, was then gone. However, the earlier point is decisive: unlike the evidence in connection with charges 11 and 14, the evidence does not imply the meeting was imminent. There is no reasonable basis upon which the jury could conclude one occurred. Mr Northwood resists this analysis on the basis the jury could legitimately infer an intention on their part to meet Sam. True, but there remains insufficient evidence the defendants ever met Sam. This application succeeds.
Charges 15 and 16
[79] These charges allege Mr Edwardson and Mr Sadler sold analogues of ecstasy
(a Class C controlled drug) between 25 May and 25 July 2015, and possessed the
same drug for sale. The applicable communications contain abundant evidence the defendants sold and possessed some controlled drug within this period. However, these particular charges require identification of the class of controlled drug, here particularised as analogues of ecstasy.
[80] Mr Mansfield and Mr Goodwin submit a reasonable jury, properly directed, could not be satisfied beyond reasonable doubt of the identification of the class of controlled drug, or its particularisation. They submit there is dissonance between reference in the conversations to the controlled drug being E, which is code for ecstasy, and the related price, which is too cheap for ecstasy but consistent with a controlled drug analogue.
[81] Related communications compound the difficulty, because the defendants refer to pills bearing logos of different types: apples, hearts, Apple i-Macs and supermans (sic). Pills with these types of logos were analysed by the ESR between
1 July 2014 and 1 October 2015, albeit not in connection with this case. Those with the superman logo were found to be MDMA, that is, ecstasy. Those with the apple logo were BZP and TFMPP. Each is a Class C controlled drug, but neither is an analogue of ecstasy. Pills with the heart logo were found to be a number of things, including, but not limited to, an analogue of ecstasy. Consequently, Mr Mansfield and Mr Goodwin submit in the absence of any analysis of the pills referred to by the defendants, their nature remains a matter of speculation.
[82] The only other evidence of any significance is that in relation to Ms Porcia Tatana, Mr Sadler’s partner. She was convicted of dealing in an analogue of ecstasy on or about 17 July, conspiring with Mr Sadler to sell an analogue of ecstasy on or about the same date, and conspiring with Mr Sadler to sell an analogue of ecstasy on or about 18 July 2015. I admitted this evidence over objection by the defendants (see Ruling (No 9)) on the basis it was of probative value in relation to the identification of the substance.
[83] However, there remains a divergence between evidence and proof, or more particularly, between evidence and sufficient evidence. Less cryptically, while the conviction evidence in relation to Ms Tatana constitutes a piece of circumstantial
evidence in relation to the nature of the substances possessed and dealt by the defendants, especially Mr Sadler, the associated date range is much broader than the offending committed by Ms Tatana in circumstances in which the types of pills being discussed have been found to contain an analogue of ecstasy, but any number of other things as well.
[84] Against this background, it might perhaps have been open to the Crown to contend the evidence was sufficient to establish dealings in a Class C controlled drug, that is, to seek leave to dispense with particularisation as an analogue of ecstasy. I say this because the preponderance of pills analysed by the ESR with corresponding logos were Class C controlled drugs. But the Crown did not advance that argument. I express no view on it.
[85] In short, there is inadequate evidence from which a jury could safely infer the underlying substances were an analogue of ecstasy. This is not to hold charges involving a controlled drug analogue necessarily require scientific analysis to succeed, a point I expressly rejected when admitting the Porcia Tatana conviction evidence. Rather, it is to acknowledge evidential shortcomings on particular facts.
Charge 25
[86] Charge 25 alleges Mr Edwardson and Ms Hohepa supplied methamphetamine on or about 13 June 2015 to a person referred to in the transcripts as “Bee”. The charge relies heavily on intercepted communications between the three, all of which occur after the alleged supply of one gram of methamphetamine by Mr Edwardson and Ms Hohepa to her. Mr Edwardson and Ms Hohepa seemingly argue about why Bee has not paid the money owed to Mr Edwardson. He contacts
Bee to inquire whether she has “my money”.10 In an apparently unguarded reference
to Ms Hohepa, Bee replies “I paid it all to Sunny”. Bee says she did so “outside the house like the following day that you gave me it … last week … that same day that you gave it”. The same conversation implies approximately $950 changed hands.
[87] Ms Ives and Mr Goodwin highlight the inconsistency of that figure with a measure of methamphetamine (there is expert evidence a gram often costs
$600-$700), an alleged lack of evidence the debt was about methamphetamine, the illogicality of a conversation in which Ms Hohepa could be understood to say she gave some money back to Bee, and alleged inadequacy of evidence Ms Hohepa was a party to the sale of methamphetamine to Bee. Ms Ives also submitted even if the jury could conclude Ms Hohepa had received the money from Bee, it did not follow she had been party to the earlier sale of methamphetamine by Mr Edwardson to Bee.
[88] I am satisfied a properly directed jury could reasonably conclude according to the criminal standard the conversations referred to the earlier and proximate supply of methamphetamine by Mr Edwardson to Bee. There is, as Mr Northwood observes, evidence methamphetamine is the “drug of choice” of Ms Hohepa and Mr Edwardson. For example, on 30 June 2015 Ms Hohepa asked Mr Edwardson for “half an hour to help her out”. There is expert evidence an “hour” is code for methamphetamine. A glass pipe was recovered from Ms Hohepa’s home on 28 July
2015. Moreover:
(a) With obvious reference to Bee’s debt, Ms Hohepa said to Mr Edwardson “you can’t … expect to … score with somebody else’s money”, a sentiment Mr Edwardson shared.
(b)Bee told Mr Edwardson her debt (to him) was offset by her supply to Ms Hohepa of “a Q” which, in light of the expert evidence, could be understood to mean a quarter of a gram of methamphetamine.
[89] So, the relevant communications permit the inference they involved the supply of methamphetamine. As observed above, the communications also permit the inference Bee was indebted to Mr Edwardson in consequence of his earlier supply of that drug. The apparent purchase price of approximately $950 is somewhat inconsistent with a gram of methamphetamine, but this is a jury issue; Detective Sergeant Sowter said a variety of factors can affect the price of controlled drugs. So too the contention it made little sense for Ms Hohepa to give some money
back to Bee when the alleged transaction was going the other way; interpretative questions of this nature are jury issues.
[90] However, there is insufficient evidence Ms Hohepa was a party to the supply of methamphetamine by Mr Edwardson. The conversations refer to Bee’s debt as being to Mr Edwardson as supplier. They imply Bee later gave the money to Ms Hohepa to give to Mr Edwardson. It is elementary criminal law party liability requires encouragement or assistance of the commission of the offence before it is complete. Here, there is no evidence Ms Hohepa did anything more than collect the money from Bee in the day or days following the transaction. More particularly, there is no evidence Ms Hohepa assisted or encouraged the antecedent supply of methamphetamine by her father, Mr Edwardson.
[91] To be clear, this charge alleged the supply of methamphetamine—not its sale. Mathias suggests the actus reus of a charge of selling a controlled drug continues until the drugs are paid for, thereby permitting conviction of a party for related activity until or at that point. Or as he puts it:11
The vendor’s activity can include the receipt of consideration, so that where this is delayed but the transfer of the drug to the purchaser has occurred, the vendor’s actus reus is ongoing and liability may attach to participants who are involved prior to, or at, the completion of the transaction by the receipt of consideration.
[92] But as charged, this offence was complete once Bee allegedly received the drugs. Again, there is no evidence Ms Hohepa assisted or encouraged that. Her application succeeds. Mr Edwardson’s application fails.
Charge 28
[93] This charge alleges Mr Hines, Mr Sadler, Mr Te Here Maaka, Mr Edwardson and Mr Vousden participated in an organised criminal group contrary to s 98A of the Crimes Act. The group’s alleged objective is the obtaining of material benefits from the making of methamphetamine, supply of methamphetamine or possession of that drug for supply. All but Mr Sadler sought to be discharged on this charge in the
event their other applications succeeded; charge 28 rests largely on proof of the commission of the other charged offences.
[94] In light of my conclusions in relation to the other charges, these applications must fail. Mr Hines continues to face relevant charges contrary to the Misuse of Drugs Act; so too Mr Te Here Maaka and Mr Edwardson. And, Mr Hines and Mr Vousden still face two money laundering charges in circumstances in which Mr Vousden’s participation in the organised criminal group is based in part on his alleged provision of money laundering services to the group vis-à-vis Mr Hines.
Amendment to charge 28
[95] Charge 28 was originally framed between 1 February 2012 and 28 July 2015. The opening date corresponded with the date of the first money laundering charge (charge 1). In light of the dismissal of that charge, and by consent before the jury retired to deliberate, I amended the charge’s opening date to 20 June 2014, which corresponds with the date Mr Vousden entered the contract to purchase
Old Wairoa Road.12
Addendum
[96] These reasons were largely complete by the end of the five-week trial.
[97] Mr Hines was found guilty of charges 6, 17–24 and 28. He and Mr Vousden were found not guilty of money laundering (charges 4 and 13). Mr Vousden was also found not guilty of participating in an organised criminal group (charge 28). Mr Edwardson was found not guilty of being a party to the manufacture of methamphetamine at Withers Road (charge 6), and not guilty of charge 25. Mr Vijn was acquitted of charge 8. Guilty verdicts were returned on all remaining charges.
[98] The verdicts accord with my own assessment of the complexion of the evidence and may be thought indicative of a careful and conscientious jury.
……………………………..
Downs J
Solicitors/Counsel:
Meredith Connell, Auckland.
A J Holland, Auckland; and K H Maxwell, Auckland. A J Maxwell-Scott, Auckland; and S Lack, Auckland. R M Mansfield, Auckland; and Q Duff, Wellington.
M E Goodwin, Auckland; and R J McCausland Auckland. S N B Wimsett, Auckland; and C Taylor, Auckland.
D G Young, Auckland; and A S Bloem, Auckland. M P Hislop, Auckland; and A Shendi, Auckland.
D M M Dickinson, Auckland; and A C Cresswell, Auckland. A M M Ives, Auckland.
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