R v M HC Hamilton CRI-2006-419-168
[2007] NZHC 119
•7 March 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2006-419-168
THE QUEEN
v
M
T
Hearing: 2, 5, 6 and 7 March 2007
Appearances: Ms L Dunn for Crown
Mr N Thinn for Mr M
Mr T Simmonds for Mr T
Judgment: 7 March 2007 at 2.30 pm
VERDICTS OF LANG J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
Mr N Thinn, P O Box 37324, Auckland
Mr T Simmons, P O Box 3815, Auckland
R V M AND ANOR HC HAM CRI-2006-419-168 7 March 2007
[1] Mr T and Mr M , you both face a single charge of conspiring to supply a controlled drug between 15 and 25 July 2005. In addition, Mr T , you face seven charges of being in possession of firearms and ammunition on 28 July 2005 other than for some lawful, sufficient and proper purpose. You both elected trial by Judge alone on all of these charges. Having heard the evidence and counsels’ submissions, it is now my responsibility to deliver verdicts on the charges that you face.
Onus of proof
[2] I begin by reminding myself of the onus of proof that applies in this case. As in any criminal case, the onus of proving each and every element of each charge remains on the Crown from beginning to end. That burden does not shift at any time. The standard of proof is that of proof beyond reasonable doubt. This means that I must be sure of your guilt before I am entitled to enter a verdict of guilty.
[3] In your case Mr T you have elected to give evidence. In addition, you have both called other evidence in support of your respective cases. In doing so, however, you assume no onus of proof. If, however, it is reasonably possible that any positive defence that you raise may be true you are entitled to the benefit of any doubt that that evidence may produce.
The firearms charges
[4] I propose to deal with the firearms charges first because the evidence and the issues that relate to those charges are relatively narrow in compass.
[5] These charges arise as a result of a police search of your house at Port Waikato on 28 July 2005. When the police searched your house they found a large number of firearms and also a significant quantity of ammunition. You acknowledged then, and you acknowledged in evidence, that these were all in your possession and that at the time that they were found by the police you did not hold a firearms licence in relation to them. This means that you carry the onus of establishing that it is more likely than not that you had the firearms and ammunition
in your possession for a purpose that was lawful, sufficient and proper. Those words must be read collectively.
[6] Your counsel has referred me to several decisions of this Court in which s45(1) of the Arms Act 1983, or its predecessor, have been considered. These include Dowdell v Police [1970] NZLR 486, Brockas v Police HC Auckland AP279/97 2 February 1998 Randerson J and Daly v Police HC Palmerston North CRI 2005-454-17 20 July 2005 Wild J. In each of those cases the Court has emphasised that the focus must be on the purpose for which the firearms were in the defendant’s possession on the date and at the times specified by the charge.
[7] Your evidence is to the effect that you had the weapons in your possession for the sole purpose of hunting wildlife and/or disposing of injured or sick animals. You have also provided an explanation regarding the specific use to which each firearm was put, and you have given similar explanations in respect of each of the types of ammunition that was found in your possession. Moreover, it is clear that when the police arrived the firearms were being held in a locked cabinet to which you alone had access. The only exception to this was the Kea gun, which was hanging on a hook in the hallway under a Swandri. Your evidence is to the effect that you had been cleaning or servicing this weapon and that you proposed to lock it away later in the day. The arrival of the police prevented you from doing that.
[8] There is also ample other evidence to support your version of events in relation to the firearms and ammunition. It is clear that you have always been heavily involved in hunting wildlife of all descriptions. Indeed it appears to be the burning passion in your life. All of the weapons, other than the Kea gun, are also the types of weapons that would normally be used for recreational purposes. Although the Kea shotgun gives the appearance of being a sawn-off shotgun I am satisfied that it is more likely than not that it is in its original form. You have explained that you use that particular weapon to kill pigs at close range. The Crown has not seriously contested your assertion in this regard and I am therefore prepared to accept it.
[9] The evidence overall satisfies me that it is more likely than not that all of the weapons and the ammunition that were in your possession on 28 July 2005 were, in fact, for the purpose of hunting. Hunting is a lawful, proper and sufficient purpose in terms of the Arms Act 1983. No alternative purpose was realistically suggested by the Crown at any stage during the trial. Although there was some cross- examination directed towards the possibility that you might have been connected in some way with the provision of firearms to Mr Kim Smith, there is no evidence to suggest that weapons emanating from you were ever found in Mr Smith’s possession or that you had any direct connection with him. For that reason I put that suggestion, to the extent that it was ever made, to one side.
[10] Having satisfied me that the weapons and ammunition were in your possession for a lawful, proper and sufficient purpose you are entitled to be acquitted on those charges and I enter verdicts of not guilty on each of them accordingly.
The conspiracy charge
[11] The conspiracy charge arises out of a police operation known as Operation Seal. The focus of that operation was the capture of Mr Kim Smith who endeavoured to evade capture by the police between November 2004 and August
2005. As part of their efforts to capture Mr Smith the police obtained interception warrants and intercepted the telephone conversations of Mr Smith and his associates. You, Mr M , was one of his associates and as a result your telephone calls were intercepted. The conspiracy charge flows from telephone calls that the police intercepted between the two of you and other persons during the month of July 2005.
The Crown case
[12] The Crown case is essentially that between 15 and 25 July 2005 the two of you had formed a common intention to acquire controlled drugs for the purpose of supplying those to others. It is alleged that you, Mr M , obtained controlled drugs from a Mr Sutton who lived in Auckland. You then supplied those to others including Mr Smith and also to Mr T . Mr T in turn was going to supply at least some of those drugs to his brother, David.
[13] The first series of intercepted calls that the Crown relies upon were between
12 and 14 July 2005 and involved Mr M and Mr Sutton. This was, of course, prior to the date of the conspiracy alleged in the indictment. I have already ruled that, although that evidence is admissible, it is admissible only for the purpose of establishing that Mr M and Mr Sutton were known to each other and were in contact prior to 15 July 2005. I am satisfied, beyond reasonable doubt, that these calls show that Mr Sutton and Mr M were well known to each other. It also shows that they made arrangements to meet at Mercer under unusual circumstances. A meeting at Mercer was in fact observed by police on 12 July
2005.
[14] The first intercepted communication that the Crown relies on and that involved both of you,occurred at approximately 3.45 pm on 15 July 2005. On this occasion Mr T telephoned Mr M from Gisborne. It is clear from the tenor of the conversation that the two men knew each other well, and that they were on friendly terms. The pertinent part of this conversation is in the following terms:
TOWNSEND Going out on the piss are ya?
MACPHERSON Yeah I’ll be heading up to Auckland tonight on the piss.
TOWNSEND Oh yeah, yeah. MACPHERSON Yeah, yeah.
TOWNSEND Are ya gonna be bloody catching up with anybody or, up there or nah you don’t know?
MACPHERSON Oh hard to say yeah. TOWNSEND Oh yeah. MACPHERSON Yeah um probably.
TOWNSEND Oh yeah oh fucken grab half a sheep for me anyway. MACPHERSON Half a sheep?
TOWNSEND Yeah. MACPHERSON Okay. TOWNSEND Yeah man, …
MACPHERSON Yeah. TOWNSEND And that’ll be cool. MACPHERSON Yeah um. TOWNSEND And um. MACPHERSON Yeah.
TOWNSEND I’ll, I’ll give ya a buzz when we’re fucken half way back home tomorrow morning anyway or tomorrow lunchtime.
MACPHERSON Yeah I’ll be around mate. TOWNSEND Okay then Rob.
[15] The Crown alleges that the reference to half a sheep in this conversation is a reference to a controlled drug. It contends that coded conversations such as this are commonly engaged in by those who are involved in illegal drug dealing activities and that I am entitled to draw the inference that they were talking about a controlled drug rather than a sheep in their conversation.
[16] At approximately 4.30pm on the following day Mr T left a message on Mr M ’s cellphone advising him that he, Mr T , had just got back to Tuakau and that he wanted Mr M to telephone him.
[17] Mr T called Mr M ’s cellphone again approximately 30 minutes later. On this occasion he was able to make contact with Mr M and, after some general discussion, they agreed to meet later that evening. Mr M ended the telephone conversation by telling Mr T that he would telephone him when he was “just about home”.
[18] Mr M then telephoned Mr T at approximately 5.15 pm to tell him that he was just leaving Tuakau. The arrangement that they reached was in the following terms:
TOWNSEND Oh well, I’ll see ya at ho, you at ho, home then. MACPHERSON Yeah you’ll be seeing me at the top there. TOWNSEND Yeah okay then man.
[19] The Crown alleges that as a result of this series of telephone calls Mr T and Mr M met at Mr M ’s home address and that it is likely that drugs that Mr M had obtained from Auckland were transferred to Mr T .
[20] Between 17 and 19 July 2005 there was a further series of calls between Mr M and Mr Sutton in which the two men made tentative arrangements to meet. Although these calls are demonstrative of the fact that Mr M was in regular with Mr Sutton during that period I am not sure that the calls necessarily had anything to do with Mr T . There is no evidence to suggest that Mr T had made any further requests to Mr M that he be supplied with further items after the telephone conversation on 15 July 2005. Even on the Crown case, it seems that, if Mr M had obtained anything as a result of the trip to Auckland on 15 July, that is likely to have been transferred to Mr T when the two men met on 16 July. For that reason I am satisfied that the only relevance of these conversations is that they show ongoing contact between Mr Sutton and Mr M .
[21] The Crown rely also on the fact that the police observed a further, apparently clandestine, meeting between Mr Sutton and Mr M at Mercer on 20 July
2005. It contends that the meeting provided a further opportunity for Mr Sutton to pass over drugs destined for Mr T . Viewed in context, however, I am not sure that this allegation can be safely sustained. As at 20 July 2005 there was no outstanding request by Mr T for any further “sheep” or any other items at all. It is reasonably possible that the request that Mr T had made on
15 July was satisfied when the two men met on 16 July. The conversation, to which I shall shortly refer, with the reference to “same again” was not until 21 July 2005. On that basis I accept there is a reasonable possibility that, assuming for present purposes that Mr M did obtain items from Mr Sutton on 20 July 2005, those items were destined for a person or persons other than Mr T .
[22] On 21 July, however, Mr T called Mr M again. After some discussion regarding the weather, Mr T asked Mr M whether he was “keen on going for a hunt”. The Crown initially alleged that this
conversation had some significance but during the trial no real reliance was placed on it.
[23] Viewing that conversation objectively I do not place any significance on it. It seems to me that it relates principally to pig hunting, a pastime in which both Mr M and Mr T appear to have engaged in regularly.
[24] At approximately 4.30 pm on the same day, however, Mr T telephoned Mr M again. The transcript of that telephone conversation
includes the following passage:
TOWNSEND Ya cruising anywhere, going anything? up anywhere or MACPHERSON
Ah yeah probably.
TOWNSEND Yeah.
MACPHERSON Yeah.
TOWNSEND Yeah, I’ll get …
MACPHERSON Mmm, yeah.
TOWNSEND Yeah.
MACPHERSON Same again?
TOWNSEND Yeah man, may as well aye.
MACPHERSON Oh okay.
TOWNSEND Yeah.
MACPHERSON I’ll see what I can do aye?
TOWNSEND Yep, nah that’d be cool.
[25] The Crown alleges that in this part of the conversation Mr T was asking Mr M to acquire controlled drugs for him again in the same way as he had done on 15 July.
[26] Mr T telephoned Mr M again at approximately 5pm the next day. After an extensive discussion about pig hunting, the following exchange occurred:
TOWNSEND Yeah, yeah, um you didn’t, did you get up to town at all or nah?
MACPHERSON Yeah. TOWNSEND Yeah. MACPHERSON Yeah.
TOWNSEND Um, oh I might fuckin’ ah, what time will you be home then?
MACPHERSON Oh I’ll ring you when I get there aye, I just, I’m waiting for some ah cunt to fuckin’ bring me over some fuckin’ money so.
TOWNSEND Oh yeah coz um, yeah I got ha, half that sheep is for
David and he’s going up north.
MACPHERSON Oh ho okay. TOWNSEND Yeah.
MACPHERSON Oh yeah that’s a bit of a problem then. TOWNSEND Yeah.
MACPHERSON Aye.
TOWNSEND Oh yeah so are they. MACPHERSON I, I’ve only, I only got one sheep so. TOWNSEND Oh, oh yeah.
MACPHERSON Yeah. TOWNSEND Yeah. MACPHERSON So, … TOWNSEND Yeah.
MACPHERSON Um, and I was gunna have half of that one so. TOWNSEND Yeah, yeah, yeah.
MACPHERSON So.
TOWNSEND Oh, oh I’ll just tell him then … mine then. MACPHERSON Yeah well yeah we’ve only got one between us so. TOWNSEND Yeah, yeah, yeah.
MACPHERSON Ah that’s all, yeah that’s all I could get so it’s.
TOWNSEND Yeah.
MACPHERSON All in the chiller ya know. TOWNSEND Yeah man yeah. MACPHERSON So.
TOWNSEND Sweet as. MACPHERSON Yeah.
TOWNSEND Oh well I’ll just tell him no. MACPHERSON Oh, be more [in] the pipeline but. TOWNSEND Yeah.
MACPHERSON Just a … bit of a rushed trip ya know. TOWNSEND Yeah, yeah, yeah, nah. MACPHERSON And ah.
TOWNSEND Sweet as.
MACPHERSON Sort of couldn’t get hold of him ‘til the last minute ya know.
TOWNSEND Yeah. MACPHERSON So …
TOWNSEND The old, the old mutton’s are hard to come by. MACPHERSON Well they’re not really, um yeah it’s easy really. TOWNSEND Yeah, yeah.
MACPHERSON But ah you know. TOWNSEND …
MACPHERSON Um well, yeah no, I’ll l, yeah I’ll tell you bout it when I’m lookin’ at ya.
TOWNSEND Yeah, yeah. MACPHERSON But ah yeah.
[27] This telephone conversation concludes with Mr T and Mr
M agreeing to meet at about 6 pm after Mr M arrives home. Mr
M confirms that he will telephone Mr T when he is heading home.
[28] Mr M subsequently telephoned Mr T at approximately
6.05 pm to tell him that he was just leaving Pukekohe. Mr T said that he was just getting out of the shower, and that he would meet Mr M at Mr M ’s place.
[29] The Crown contends that this conversation confirms that Mr M had obtained further controlled drugs for Mr T , and that the two men were to meet at Mr T ’s home for the purpose of handing the drugs over. Moreover, the Crown says that the conversation demonstrates that Mr T intended to supply at least some of the drugs to his brother David. That conversation, as people will remember, had all the conversation about half the sheep being for David and so on.
[30] Mr M was also in contact with Mr Sutton at 6.14 pm the same day,
22 July 2005. Mr M made it clear during this conversation that he needed to get hold of Mr Sutton and that they needed to meet. I am satisfied that this call is both relevant and admissible against both accused because it follows very shortly after the discussion between them from which the inference can be drawn that Mr M had obtained insufficient “sheep”, whatever that may mean, for the purposes of the two accused and that there would be “more in the pipeline”. The inference can therefore be drawn that subsequent telephone conversations between Mr M and Mr Sutton may well relate to Mr M ’s desire to obtain more of the items that he and Mr T refer to as “sheep”.
[31] Mr M telephoned Mr T again at approximately 11.30 am on 24 July 2005. The conversation on this occasion included the following discussion:
MACPHERSON Ah, ah yeah I wanted to talk to you, well yeah, they wanted me to get something for them, but I’ll have to get the other which is, is like too, too dear ya know.
TOWNSEND Ah, yeah, yeah.
MACPHERSON I’ll have to try and get that cos I can’t get hold of the other one so.
TOWNSEND Yeah, yeah.
MACPHERSON Yeah so ah I’ll have ta try and ah get some, get hold of them or whatever.
TOWNSEND …
MACPHERSON Were you talking to them this morning? TOWNSEND Last night.
MACPHERSON Oh okay. TOWNSEND Yeah. MACPHERSON Oh yeah.
[32] The Crown alleges that this conversation was also about the acquisition and supply of drugs. I accept that this inference is available but I do not consider that it necessarily relates to any agreement between Mr M and Mr T . Rather, it suggests that the two men were talking about drugs that Mr M was to supply to others. I therefore put this conversation to one side so far as the present charge is concerned.
[33] There were also a series of calls between Mr Sutton and Mr M on
24 July 2005 in which the two men discussed again the fact that they need to meet or catch up. I consider that these calls were also sufficiently proximate to the discussion between Mr M and Mr T on 22 July 2005 to be relevant and admissible.
[34] Mr M called Mr T again at approximately 12.30 pm on
25 July 2005. This occurred a short time after Mr Smith’s girlfriend, Carrie Lyndon, had been arrested by the police. During this conversation Mr M told Mr T about the manner in which Ms Lyndon had been arrested. Towards the end of the conversation the two men said this:
MACPHERSON And we, you know, … we didn’t even know anything about it.
TOWNSEND Nah man nah.
MACPHERSON That’s you know, that’s why, you know, you ol, I’ll tell ya about it anyway when I’m looking at ya, but yeah.
TOWNSEND Yeah, mate, yeah, yeah. MACPHESON Not, not good. TOWNSEND Yeah, yeah.
MACPHERSON Yeah so pay to keep ya wits about ya. TOWNSEND Yeah man, pay to keep the old phone talk fucken. MACPHERSON Yeah.
[35] The Crown relies on this conversation as providing further evidence of the fact that Mr T and Mr M were involved in illegal activities relating to drugs.
[36] The Crown’s submission overall then, is that when the intercepted telephone calls are viewed in context, they satisfy the Court beyond reasonable doubt that between 15 and 25 July 2005 Mr T and Mr M were parties to a common design or agreement involving the supply of drugs to Mr T and that he, Mr T , was also involved in the supply of drugs to other persons, including his brother.
The defence case
[37] The defence case is quite simple. It is to the effect that the conversations between Mr T and Mr M mean exactly what they say. The defence contends that the telephone conversations were no more than ordinary discussions between two good friends and that they related to hunting and other innocent activities.
[38] Mr T also says that the reference to “sheep” in the telephone conversations on 15 and 22 July 2005 related to an arrangement that he and Mr M had made regarding the manufacture of sausages. He says that he and Mr M regularly had sausages made up by local butchers, including Mr Earl Doidge. He says that as at July 2005 he and Mr M had agreed to
have a further batch of sausages made. This involved Mr T contributing wild pork and Mr M contributing half a sheep. Those items were then to be dropped off at David T ’s house and he would deliver them to the butcher. Mr T and Mr M were each to bear half of the cost of having the sausages made up.
[39] Mr T therefore says that the reference on 15 July 2005 to “grab half a sheep for me” is a request to Mr M that he obtain half a sheep and give it to Mr T . Mr T would then drop the sheep, along with the pork, off at his brother, David’s. David would then take it to the butcher to be made into sausages. Mr T also says that the telephone conversation on 22 July 2005 in which there was extensive reference to “sheep”, related to this same issue. He therefore contends that the discussions were entirely innocent and that the reference to “sheep” is not a code. Indeed, he denies that any form of code was used in the discussions between himself and Mr M .
[40] In relation to the conversation on 21 July 2005 Mr T says that the reference to “same again”, upon which the Crown places such reliance, is simply a reference to a hunting spot that he and Mr M planned to visit. He therefore says that this, too, was an entirely innocent reference and was not in any sense a coded conversation.
Decision
The defence case
[41] I begin by considering the defence case. I do this, not because the defence bears any onus but because, if the defence explanation could reasonably be true, it is likely to provide a complete answer to the charge.
[42] I accept that there is ample material in the evidence to suggest that Mr T and Mr M did have sausages made out of venison, pork and mutton on a reasonably regular basis. This comes not only from Mr T ’s evidence but also that of Mr McCormack and Mr Doidge. The issue, however, is
whether the telephone conversations on 15 and 22 July 2005 could reasonably have been about that topic.
[43] In considering this issue I place little weight on the invoice dated 10 October
2005 from Mr Doidge. It seems to me that, even allowing for the intervention of Mr M ’s arrest on 26 July, it is not sufficiently proximate to be of any real assistance.
[44] Viewed overall and in context, I have reached the conclusion that the telephone conversations on 15 and 22 July did not relate to the manufacture of sausages. The primary factor that I rely upon in reaching this conclusion is the context in which each discussion occurred.
[45] The discussion on 15 July 2005 occurred shortly after Mr M told Mr T that he would be heading up to Auckland “on the piss” and Mr T then asked Mr M whether he would be catching up with anybody up there. The overall tenor of this conversation is that Mr T had an interest in the fact that Mr M was going to Auckland and that he might be catching up with someone up there. I also accept the Crown submission that the conversation was in reasonably guarded terms. No names were mentioned and it seems to me that Mr T , in particular, was relatively guarded in the way in which he questioned Mr M on this point. The request that Mr M “grab half a sheep” for Mr T then followed shortly after the discussion about Mr M ’s trip to Auckland. Although I accept that there may have been a pause between discussion about the trip to Auckland and the request for “half a sheep”, I do not consider that the pause was sufficient to break the nexus between the two topics. I consider that the request for half a sheep arose directly as a result of Mr T acquiring the knowledge that Mr M was travelling to Auckland and that it was likely that he would be catching up with somebody up there. There is no evidence to suggest that Mr M was acquiring sheep or mutton from Auckland. All of the evidence is to the effect that he was acquiring it locally.
[46] Similarly, the overall nature of the telephone discussion on 22 July 2005 does not suggest that the conversation was about the provision of half a sheep for the purpose of making sausages. Mr T ’s view of this conversation, namely that it related to Mr M retaining half the sheep and half being retained by the original owner of it, does not make sense in my view on any view of the facts. Whatever the conversation was about, I do not consider that it related to sheep being made into sausages.
[47] The context in which both conversations occurred therefore suggests to me that the two men were not talking about sheep to be made into sausages.
[48] Secondly, the making of sausages is an entirely innocent topic. If the two men were really talking about this I have no doubt that at some stage during the conversations there would have been some reference to making sausages or at least some other reference that would lead to the inference that that was the topic under discussion. As matters stand, there is absolutely nothing in the evidence to connect the two conversations with the making of sausages. I have therefore reached the conclusion that it is not reasonably possible that Mr T ’s explanation on this point could be correct. It follows that I reject the positive evidence adduced by the defence on this point.
[49] Similarly, I do not accept Mr T ’s explanation in relation to the conversation on 21 July 2005 containing the reference to “same again”. That, too, followed a question from Mr T as to whether Mr M was “cruising anywhere” or “going up anywhere”. I consider that it arose as a direct result of Mr M ’s confirmation that he would be doing that. The reference to “same again” did not occur within the context of a conversation about hunting and I do not accept that it is reasonably possible that that reference was a reference to returning to a previous hunting spot.
[50] This means that I reject the defence evidence that was designed to provide an explanation for the references to “sheep” and “same again”. The rejection of this evidence does not, however, mean that I automatically reach a finding of guilt. As in any criminal case, the rejection of defence evidence means simply that that
evidence must be put to one side. The tribunal of fact must then return to the Crown case in order to ascertain whether the Crown has proved its case to the required standard.
The Crown case
[51] When the defence evidence is placed to one side the Crown case suggests that on 15 July 2005 Mr T asked Mr M to obtain something for him from Auckland. It seems inherently unlikely in the circumstances that that item was half a sheep. For that reason the Crown submission that this conversation was a coded one has some force.
[52] That submission is further supported by the telephone discussions between
Mr M and Mr T on 21 and 22 July 2005.
[53] I also accept that there is evidence to suggest that whatever the two men were discussing it was of an illicit or illegal nature. I draw this conclusion from the fact that on at least two occasions Mr M told Mr T that he would fill him in on details “when I’m looking at you”. It seems to me that this suggests that Mr M was not prepared to discuss some subjects over the telephone and that he was only prepared to discuss them with Mr T in person. It is of some significance also that those comments occur in relation to events relating to the trip to Auckland on one occasion and the arrest of Carrie Lyndon on the other.
[54] I also accept the Crown’s submission that the telephone conversation on
25 July 2005 is of some significance. The reference at the end of that conversation to “pay to keep your wits about you” suggests that the two men have cause for concern about what they are doing. When Mr T responds by saying “pay to keep the old phone talk fucken”, the inference is also available that he knows that he and Mr M have to be careful about what they say on the phone. All of these matters suggest to me that it is likely that Mr T and Mr M were involved in activities of an illicit or illegal nature.
[55] I also accept that the telephone conversation on 25 July 2005 suggests that Mr T may well have known more about Mr Smith and his efforts to evade capture by the police than he is prepared to admit. This possibility is supported by the telephone call on 24 July 2005 in which Mr M told Mr T that he, Mr M , wanted to talk to Mr T about what other people wanted him to get. I consider that it is likely that this is a discussion about items that would be provided to Mr Smith and that Mr T ’s opinion in relation to those items was of at least some value to Mr M .
[56] Mr T is not, however, charged with assisting Mr Smith, and any knowledge that he may have had regarding Mr Smith’s circumstances is not relevant to the present charge. For these reasons I put this aspect of the evidence to one side in considering the guilt or innocence of Mr T and Mr M .
[57] The overall impression, therefore, that I gain from these telephone conversations is that the two men were on some occasions talking in a form of code and it is likely that the items they were discussing may have been illegal. Had the matter to be decided on the balance of probabilities, I would have said that it was more likely than not that they were discussing the supply of a controlled drug. The conversations certainly raise that prospect. That is not, however, the standard of proof that I must apply. I must be satisfied beyond reasonable doubt that that is what the two men were talking about. It is not enough for me to be suspicious or to believe that it is more likely than not that that is what was going on.
[58] In the end, and not without some reservations, I have reached the conclusion that I am not satisfied beyond reasonable doubt that the Crown has made out the allegations. I have reached this conclusion for three principal reasons. First and foremost, the discussions on which the Crown relies are brief in the extreme and give no real hint about what is actually going on. The difficulty that I have faced in deciding this verdict is reflected to some extent by the difficulty that the Crown has had in formulating it. Mr T and Mr M originally faced a charge of conspiring to supply LSD. That was the basis on which the Crown resisted Mr T ’s pre-trial application for an order discharging him under s 347 of the
Crimes Act 1961. The Crown during that argument contended that the reference to
“sheep” was a reference to a sheet of LSD.
[59] In its final form, however, the charge that Mr T and Mr M now face is one of conspiring to supply a controlled drug. Moreover, in her closing submissions to me Crown counsel submitted that it is likely that the two men were discussing the acquisition of methamphetamine. This submission was made on the basis that Mr M had clearly supplied Mr Smith with methamphetamine and methamphetamine was found in Mr M ’s possession when he was arrested on 26 July 2005. I understand the logic of this submission, but it leaves me with some difficulty in terms of what the two men were actually talking about. While I could understand a reference to “half a sheep” being a reference to half a sheet of LSD, it is much more difficult to apply that phrase to methamphetamine.
[60] It is not, of course, necessary for the Crown to specify the controlled drug that it says the two men were conspiring to supply. It is sufficient for the two men to be involved in a conspiracy to supply some form of controlled drug. In the end, however, the difficulty that the Crown has had in formulating the charge leads me to have some doubts about what the subject of the conversations was. Whilst it is likely that the two men were discussing a controlled drug I am not prepared to take the further step that I am sure that that is the case. I am left in a reasonable doubt overall as to the precise topic that the two men were discussing in their telephone conversations during the period referred to in the indictment.
[61] Secondly, there is no other evidence at all connecting Mr T with any controlled drugs. There is no evidence to suggest that anything of an incriminating nature was found at his property when the police searched it on 28 July 2005. The Crown case must therefore stand or fall solely on the telephone conversations together with Mr M ’s contact with Mr Sutton.
[62] That particular factor gives rise to another difficulty. Overlying all of these allegations is the undoubted fact that, during the period referred to in the indictment, Mr M was obtaining methamphetamine from Mr Sutton for supply to Mr Smith. Methamphetamine was found by the police on 24 July 2005 when they
raided the hut that Mr Smith had been living in at Port Waikato. It also seems reasonably clear to me that the methamphetamine that was found in Mr M ’s possession on 26 July was also destined for Mr Smith. The problem, therefore, lies in isolating which of Mr M ’s actions during the period in the indictment can be ascribed to any desire to supply Mr Smith, on the one hand, or Mr T , on the other.
[63] Finally, Mr T is entitled, in my view, to the benefit of the character evidence that he has adduced. In a marginal case such as this that must count for something.
[64] Whilst it is clear that Mr M was involved in the supply of controlled drugs to Mr Smith, I cannot be satisfied that he was involved in a conspiracy with Mr T to supply controlled drugs for him. For that reason, whilst I reject the defence evidence, the case falls to be decided on the basis of the onus of proof.
[65] For the reasons that I have given I enter verdicts of not guilty in respect of both accused on Count 1. They are discharged on that count accordingly.
Lang J
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