R v Le'Ca
[2017] NZHC 2362
•28 September 2017
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-092-11616 [2017] NZHC 2362
THE QUEEN v
ADRIAN LEʼCA MEINATA PIAHANA
Hearing: 24 August 2017 Appearances:
K E Hogan for Crown
S J Bonnar QC for A LeʼCa B L Sellars for M Piahana
Judgment:
28 September 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 28 September 2017 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel: Crown Solicitor, Manukau S J Bonnar QC, Auckland
B Sellars, Barrister, Auckland McVeagh Fleming, Auckland
R v LEʼCA & ANOR [2017] NZHC 2362 [28 September 2017]
Summary
[1] Mr Adrian Le’Ca and Mr Meinata Piahana apply to dismiss five charges and one charge, respectively, of importing and attempting to import drugs. I grant the applications because I am satisfied a properly directed jury could not reasonably convict the defendants on these charges. Such convictions would be unsafe. While there is general evidence that points towards possible involvement in drug importation or dealing, there is nothing that links either of these two defendants specifically to these particular instances of importation and alleged importation. Mr Le’Ca and Mr Piahana will stand trial on the remaining three and five charges they face respectively.
Law of dismissal
[2] There is no disagreement between the parties about the law. Section 147(4)(c) of the Criminal Procedure Act 2011 provides I may dismiss a charge if I am satisfied, as a matter of law, a properly directed jury could not reasonably convict a defendant on that charge.
[3] The Court of Appeal, in R v Flyger, stated a judge “must respect the jury’s responsibility to decide the facts” and “should not normally” dismiss charges “where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case”.1 Where the Crown case depends on inferences, as it does here, the credible evidence must “establish facts capable of supporting the inference” but “[t]he court should not decide on such an application or submission whether the relevant inference should be drawn”.2 Similarly, a judge should “guard against a tendency to determine issues on what the Judge may regard as reasonable, rather than whether or not the Jury could reasonably come to a conclusion of guilt”.3
[4] Questions about the weight of evidence, or credibility, are for the jury to hear in the context of all the evidence. It is not for me to predict the outcome of what a jury is likely to do.4 Neither should I foreclose the jury from considering a case unless I
1 R v Flyger [2001] 2 NZLR 721 (CA) at [13]. And see Parris v Attorney-General [2004] 1 NZLR 519 at [7]–[14].
2 R v Adams HC Auckland T240/91, 8 October 1992 at 4, endorsed by the Court of Appeal in Flyger,
above n 1, at [18].
3 R v Bromby HC Dunedin T05/5334, 10 August 2006 at [11].
4 R v Flyger, above n 1, at [18].
am satisfied that, taken at its highest, the Crown’s evidence is such that a properly directed jury could not reasonably convict a defendant. The rationale for a dismissal is the unsafeness of a conviction, having regard to the evidence.5
The charges and allegations
Law of importation and attempts
[5] The parties agree about the law of importation of methamphetamine. Importation continues until the drugs are available to the consignee. Importation has to have occurred. The defendant has to know a package contained a controlled drug or be reckless as to whether it did.6 The defendant has to be knowingly involved in the importation and their contribution to the important must be material.7 A defendant may be convicted as a principal or, under s 66 of the Crimes Act 1961, as a party. Party liability for importation, as an aider or abettor, can include agreeing to act as a recipient of an importation prior to its completion.8
[6] Under s 72 of that Act, a defendant is guilty of an attempt if he or she, having intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object. An act done with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not any act unequivocally showed intent to commit the offence.
The general facts
[7] The Crown’s summary of facts is that Mr Le’Ca was the organiser and Mr Piahana, his nephew, played a support role. Ms Queenie Matthews, Mr Le’Ca’s sister, and Mr Fred Uputaua, a close associate of Mr Piahana, are also alleged to have played support roles. Ms Julie Peters is alleged to have acted as receiver of proceeds.
[8] Mr Le’Ca returned to New Zealand from Thailand on 8 September 2015 after six years’ absence. He is alleged to have been a member of the Bandidos Outlaw
5 R v Flyger¸ above n 1, at [15].
6 R v Cameron [2017] NZSC 89. The parties agree Cameron applies.
7 Chea v R [2016] NZCA 207 at [73].
8 R v Wickremasinghe CA137/03, 21 August 2003 at [13].
Motor Cycle gang. Ms Hogan, for the Crown, acknowledges there may be admissibility issues with some evidence about this. Mr Bonnar QC, for Mr Le’Ca, advises it will be subject to significant challenge. On his return from Thailand Mr Le’Ca listed his contact address as 5 Gypsy Moth Place, Papakura, which is the home address of Ms Matthews and Mr Piahana. He went back to Thailand for two months in March and April 2016, declaring the same address to be his contact address on return. He gave the same address to Kiwibank and ASB.
[9] The Crown says call and data from Mr Le’Ca’s mobile phone indicates he communicated by call or text around the time of each importation. For the purposes of this judgment, I refer to phone numbers attributed to Mr Le’Ca or others as their phone numbers. There is evidence of significant amounts of cash having existed (by way of post-it notes with sums, weights and “Uncle” written on them in shoeboxes) at 5 Gypsy Moth Place, as well as a number of cellphones.
[10] The Crown also alleges there were large amounts of unexplained income and expenditure by Mr Le’Ca and his associates and relatives. When Mr Le’Ca’s house at 5/19 Waihi Way was searched, Ms Hogan submits $250,000 in cash and high value items totalling $100,000 were located. I have seen transcripts of audio recordings from devices stationed at that address. The Crown says included on these recordings are Mr Le’Ca and Ms Peters counting cash and having conversations emphasising the need for secrecy. Mr Bonnar submits those conversations, from August and September 2015 may relate to other charges Mr Le’Ca faces but cannot be relevant to this offending, which occurred between October 2015 and September 2016. In addition, Mr Piahana is alleged to have received $39,000 in cash on 2 and 3 October 2015, transferring it to a Thai bank account and converting it to Baht.
The charges
[11] Mr Le’Ca and Mr Piahana jointly face four charges of attempting to import into New Zealand a Class A controlled drug and two charges of actually importing a Class A drug, arising out of the same events. Mr Le’Ca also faces two charges of possession of a Class A drug. The trial is set down for three weeks commencing on 16 October 2017.
[12]Other charges, that are not the subject of applications:
(a)Mr Le’Ca, Ms Matthews and Mr Piahana are jointly charged with a further importation, of 1.3627kg by package on 9 May 2016;
(b)Mr Uputaua (who has pleaded guilty) and Mr Le’Ca are jointly charged with possession for supply of 14.9kg of methamphetamine and 1.9233 g of cocaine on 30 September 2016;
(c)Mr Uputaua is charged with (and has pleaded guilty to) possession of cocaine for supply; and
(d)Ms Peters, Mr Le’Ca’s partner, faces a representative charge of money- laundering.
Charge 1: Attempted importation, intercepted in Thailand
Charge
[13] On 17 October 2015, a package containing 280 g of methamphetamine, addressed to Fred Maea at 33 Orchard Rise, Papakura, was intercepted in Thailand. That is the address of Mr Uputaua who is alleged to use the name Fred Maea as an alias. There were 19 phone calls between Mr Le’Ca and Mr Piahana between 2 and 29 October 2015. Mr Le’Ca, Mr Uputaua and Mr Piahana are jointly charged with attempted importation.
Submissions
[14]Mr Bonnar QC submits, in relation to this and the other charges:
(a)There is a significant lack of careful analysis by the Crown of the evidence which is probative and relevant to the specific charges.
(b)Familial links are not a basis on which to infer criminal culpability.
(c)The evidence of cash at Gypsy Moth Place is speculative and the cellphones are more likely to be connected to those living there than Mr Le’Ca.
(d)The evidence of significant expenditure is consistent with Mr Le’Ca’s legitimate business interests in Thailand and the Crown cannot point to anything which says otherwise.
(e)Intercepted communications between Mr Le’Ca and his partner, Ms Peters, relate to expenditure and finance related to tax issues, not drug dealing.
(f)The Court has to be careful to guard against elevating general suspicion to specific allegations.
(g)A properly directed jury could not be satisfied of guilt beyond reasonable doubt.
[15] More specifically in relation to this charge, Mr Bonnar submits the phone calls only loosely correlate with the timing of the importation and there is no evidence of their content. They are consistent with perfectly innocent conversations between family members. He submits there is no evidence Mr Le’Ca intended to import the methamphetamine in this package or did any act to accomplish that.
[16] Ms Hogan submits generally Mr Uputaua’s guilty pleas to the charges against him would be adduced and would support the existence of methamphetamine in charges one and three. She points to Mr Le’Ca’s time in Thailand, his membership of a gang, his connection to the addressee through familial ties, the evidence of cash at the place he gave as a contact address where his relatives reside, and the cash and high value items found at his house as circumstantial evidence of his connection to the importations and alleged importations. She submitted that if there is sufficient evidence on which Mr Le’Ca could be convicted of one offence then that could be propensity evidence cross-admissible for the other similar charges.
[17] Mr Bonnar responded that the Crown’s submission regarding cross- admissibility ignores differences between charges 2 and 4 which were not intercepted and about which the Crown has no admissible evidence of the contents of the packages. Mr Bonnar submits the Crown seeks to haul its case up by its own bootstraps and does not help with the question of whether there is sufficient evidence on which a jury could properly convict Mr Le’Ca on these particular charges where the dissimilarities are more cogent than the similarities.
[18] When I pressed Mr Hogan at the hearing as to what evidence most directly links Mr Le’Ca to this attempted importation she pointed to the transfer of $39,000 by Mr Piahana into Thai Baht, Mr Le’Ca’s links to Thailand and the package being addressed to an associate of Mr Piahana’s.
Decision
[19] There is no doubt each of the pieces of circumstantial evidence, on their own, would be insufficient for a jury to convict Mr Le’Ca. The question is whether, together, the strands combine to form a basis upon which a conviction may be safe. I consider they do not. At its highest, the evidence justifies suspicion that Mr Le’Ca was involved in activity generating large sums of money. That money could well have derived from drugs. But, as I explain in relation to each charge, there is insufficient evidence that links the defendant specifically to the particular offending at issue in these applications. I do not consider there is evidence on the basis of which a jury could reasonably infer culpability for these specific importations or attempted importations. A conviction on the basis of generalised suspicion is not safe.
[20]More specifically, in relation to the first charge:
(a)Familial links do not add to evidence of criminal culpability but, rather, are a logical explanation for phone calls and texts between Mr Le’Ca and other defendants. We don’t know the content of the calls. And there is nothing about their timing to link them to this attempted importation.
(b)Mr Uputaua’s guilty pleas may support the existence of methamphetamine in relation charges one and three. But they do not link that to Mr Le’Ca.
(c)The intercepted communications do not link Mr Le’Ca to any of these specific importations.
(d)Cross-admissibility of insufficient evidence for each of several charges cannot bolster the evidence for the others.
(e)The evidence Ms Hogan pointed to as most directly linking Mr Le’Ca to the offending in the first charge relies on a series of tenuous inferences that are insufficient to found a safe conviction. They fail to adequately link Mr Le’Ca to intent or knowledge of, or material contribution to, or proximate connection with, this particular attempted importation.
Charge 2: Attempted importation expected
Charges
[21] On 13 November 2015, sent from India, a package was delivered to Talia Frost at 13B Clarice Place, Takanini. Ms Frost is a grandniece of Mr Le’Ca. The Crown says, based on a statement by one of the defendants, the package was expected to contain methamphetamine, but it did not. The track and trace number of the package was written in a “Thai for beginners” book found in Mr Le’Ca’s bedroom. There were five phone calls between Mr Le’Ca and Mr Piahana from 10 to 13 November 2015. There was one text from Mr Piahana’s phone to Mr Le’Ca’s phone on 10 November 2015 saying “Don’t pick me up, im at home already Uncle”.
[22] Mr Le’Ca, Ms Matthews and Mr Piahana are jointly charged with attempted importation. This is the only charge Mr Piahana has applied to have dismissed. Ms Matthews made a statement to Police that the package was expected to contain methamphetamine but the Crown concedes that is not admissible against Mr Le’Ca or Mr Piahana because s 27 of the Evidence Act 2006 prohibits admissibility of
defendants’ statement against co-defendants given the high risk of unreliability of such statements.
Submissions
[23] Mr Bonnar concedes the track and trace number is evidence connecting Mr Le’Ca to the package, even though he says Mr Le’Ca was fluent in Thai and so would not need such a book. But he submits there is no evidence of the content of the phone calls and there are other phone calls between the same numbers on 17 November 2015 which does not fit the Crown narrative. He submits the text is not probative of any criminality. Mr Bonnar submits the Crown has no admissible evidence to establish Mr Le’Ca intended to import methamphetamine, did anything to accomplish that or anticipated the package would contain methamphetamine.
[24] Ms Sellars, for Mr Piahana, submits there is no admissible evidence about Mr Piahana’s expectation of what the package was meant to contain and there is no evidence linking him to the package. She says the 10 November text is not relevant because its date is unconnected to any known events relating to the package (which left on 6 November, was delivered to New Zealand on 11 November and arrived on 12 November). She submits it is unclear how the transfer of $39,000 to a Thai bank account, and conversion into Baht, on 7 October supports the charge relating to importation six weeks later.
[25] Ms Hogan submits the money transfer on 7 October was reasonably proximate to this importation on 13 November. She acknowledges Ms Matthews’ evidence of expectation of methamphetamine is not admissible. She submits the general cross- admissible evidence goes to Mr Le’Ca’s oversight of operations and that that, and the fact that Ms Frost did not order the package, informs the case against the defendants. She submits an inference would be available to a jury that this was part of the same operation as other importations.
Decision
[26] The track and trace number is evidence connecting Mr Le’Ca with the package. But the package did not contain methamphetamine. And the real problem for the
Crown is there is no admissible evidence Le’Ca or Mr Piahana expected or anticipated that the package would contain methamphetamine. Neither is there admissible evidence they did or omitted anything to accomplish such an attempt. I am left unclear what evidence there is of Mr Le’Ca’s oversight of operations. If it primarily the boxes and post-it notes, and what was found at his home, it is weak. The familial relationships, potentially innocent phone calls and the apparently unrelated text, or a transfer of money into Thai Bhat the previous month, even in combination, are too tenuous a basis to support such an inference.
[27] There is insufficient evidence on which a properly directed jury could find Mr Le’Ca’s or Mr Piahana’s intent or knowledge of, or material contribution to, or proximate connection with, this particular alleged attempted importation. I consider convictions of either Mr Le’Ca or Mr Piahana on this basis would be unsafe.
Charge 3: Attempted importation intercepted in Hong Kong
Charge
[28] Third, on 3 December 2015, a package containing 1.29 kg of methamphetamine, addressed to Fred Maea, at 33 Orchard Rise, Papakura, Mr Uputaua’s address, was intercepted in Hong Kong. The package bore the landline phone number for 5 Gypsy Moth Place. There were two phone calls between Mr Le’Ca and an unknown Thai number on 1 December 2015. On the same day, there were also two phone calls from Mr Le’Ca’s phone and the landline at 5 Gypsy Moth Place. There was a text between Mr Le’Ca’s phone and an unknown associate on 2 December 2015 saying “How many tourist are coming over to watch cricket game”, to which he replied “Not sure till I see the itenery”. Mr Le’Ca, Mr Uputaua and Mr Piahana are jointly charged with attempted importation.
Submissions
[29] Mr Bonnar submits the Thai calls and the calls to Gypsy Moth Place are unsurprising given Mr Le’Ca had lived in Thailand and his family lived at Gypsy Moth Place. He points out the interception was made in Hong Kong. Familial relationships are insufficient. The address is also the address of other defendants. He submits a
very long bow would be needed for a jury to infer the text message was a coded communication connected to the importation of methamphetamine. He submits there is insufficient evidence Mr Le’Ca intended to import the methamphetamine or did any act for the purpose of accomplishing that object or that any such act was so connected with the offence as to constitute an attempt.
[30] Ms Hogan submits the considerations here are similar to those involved with the first charge. There are circumstantial links between Mr Le’Ca and the Gypsy Moth address and the other general submissions are applicable here.
Decision
[31] The same considerations apply to this charge as apply to the first charge. Phone calls with his family and Thailand two days before, an odd text one day before and Mr Uputaua’s guilty plea, even together and along with the general evidence outlined above, cannot found a safe verdict that Mr Le’Ca was connected with, let alone culpable for, this attempted importation. A properly directed jury could not find, on this evidence, Mr Le’Ca intended, was knowingly involved in, made a material contribution to, or was proximately connected with, this attempted importation.
Charge 4: Importation from China
Charge
[32] Fourth, on 29 December 2015, sent from China, two packages were delivered to Rochelle Walker, the daughter-in-law of Ms Matthews, at 5 Gypsy Moth Place, Papakura. The evidence is that “Queenie Piha” and “May Matthews” signed for the packages. Each package is alleged to have contained an unknown quantity of methamphetamine. Mr Le’Ca, Ms Matthews and Mr Piahana are jointly charged with importation. The Crown has decided not to rely on a text exchange as it is insufficiently relevant.
Submissions
[33] Mr Bonnar submits there is nothing to link Mr Le’Ca with the packages and there is no admissible evidence the packages even contained methamphetamine.
[34] Mr Hogan submits the jury may draw an inference, similar to that she identified in relation to the second charge, that Mr Le’Ca was running an importation operation involving receipt of packages from overseas, received by members of his family.
Decision
[35] Again, I consider there is insufficient evidence to connect Mr Le’Ca to this alleged attempted importation of an unknown quantity of something alleged, on the basis of no admissible evidence, to be methamphetamine. Mr Le’Ca’s relationship to those directly involved and general suspicion of his activities are insufficient grounds for a safe conviction. There is insufficient evidence on which a properly directed jury could find Mr Le’Ca’s intent or knowledge of, or material contribution to, or proximate connection with, this particular alleged attempted importation.
Charge 5: Attempted importation intercepted in Thailand
Charge
[36] Fifth, on 21 February 2016, a package containing 470 g of methamphetamine was intercepted by Thai Customs. It was addressed to Candice Taite (an alias of Ms Matthews) at 5 Gypsy Moth Place, Papakura. There were four phone calls between Mr Le’Ca’s number and Mr Piahana’s number on 18 January 2016. On the same day, Mr Piahana sent two texts to Mr Le’Ca:
Jamys here. Got stuck in traffic. Accident on the motorway. Need to see you asap
Jamys going back to his motel to charge his phone up but needs to see you asap. Backlogged people
[37] Mr Le’Ca, Ms Matthews and Mr Piahana are jointly charged with attempted importation.
Submissions
[38] Mr Bonnar submits the phone calls cannot be said to relate to the offending because there is no evidence of their content, their dates do not correlate to the date of interception and phone calls between family members is hardly incriminatory. He
submits the text messages, a month before the alleged attempted importation, are innocuous and do not connect Mr Le’Ca to that importation.
[39] Ms Hogan advised the Crown may reconsider the relevance of the intercepted communications given the difference in timing with the interception of the methamphetamine.
Decision
[40] I consider there is insufficient evidence to connect Mr Le’Ca to this alleged attempted importation. The phone calls and texts, on unrelated dates, combined with the other general evidence, are insufficient grounds on which a properly directed jury could convict Mr Le’Ca. The evidence is not capable of supporting the inferences the Crown submits can be drawn regarding Mr Le’Ca’s intent or knowledge of, or material contribution to, or proximate connection with, this attempted importation.
Result
[41] I grant the applications and dismiss charges one to five against Mr Le’Ca and charge two against Mr Piahana.
..................................................................
Palmer J
0