R v Mason CA340/05

[2006] NZCA 394

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA340/05

THE QUEEN

v

ADRIAN NICHOLAS MASON

Hearing:         10 March 2006

Court:            Chambers, Baragwanath and Heath JJ Counsel:          P H B Hall for Appellant

M D Downs for Crown

Judgment:      16 March 2006

Reasons:        16 March 2006

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The conviction is quashed. C  A new trial is directed.

R V MASON CA CA340/05 16 March 2006

D        The appellant is remanded on bail on the following terms:

(a)       the appellant must reside at 47 Hudson Street, Christchurch; (b)           the appellant must not apply for a passport;

(c)       the appellant must appear in the Christchurch District Court on

17 March 2006 at 2.15 pm.

(d)       any application to vary these terms of bail is to be made in the

District Court.

EAn order that these reasons for judgment not be published in the news media or on the internet or any other publicly accessible database until final disposition of the new trial.  Publication of these reasons in a law

report or law digest is, however, permitted.

REASONS

(Given by Baragwanath J)

[1]      On 10 March 2006 we allowed this appeal for reasons to follow.  These are the reasons.

[2]      The appellant was convicted by a jury in the District Court at Christchurch on a count of importing into New Zealand the class C controlled drug pseudoephedrine and was sentenced to three years imprisonment.  He appealed against conviction and sentence.   The grounds of appeal alleged miscarriage of justice in terms of s 385 (1)(c) of the Crimes Act 1961 in two respects.

[3]      The first was alleged failure by trial counsel to follow instructions to present evidence to support the  appellant’s claim that he was  expecting delivery to  his address of an EFTPOS machine and for that reason accepted from a customs officer posing as a courier driver and signed for, a parcel sent from China containing a brake drum  for  a  car.    He  did  so  using  the  name  of  the  addressee  of  the  parcel “Rangiwahia” rather than his own name.  On arrival in New Zealand it had contained

15 sealed foil packages holding 1.5 kgs of Contac NT, a precursor substance used to

produce methamphetamine.   The customs staff removed the precursor substance before its delivery to the appellant.

[4]      The second ground of appeal related to the directions given by Judge Abbott in respect of the standard of proof.

[5]      Both grounds were the subject of written submissions by the appellant and respondent.   The first ground was supported by affidavits by the appellant and, following waiver of privilege, by his former counsel.  Notices to cross-examine were given.

[6]      As it turned out, however, we did not have to hear evidence or hear oral submissions on those two grounds of appeal because the Crown accepted that the appeal had to be allowed on a third ground which the Court had raised with counsel prior to the hearing.  This ground was that the prosecutor’s final address to the jury was inaccurate in stating the law on importation and that it had not been sufficiently corrected in the summing up.  We drew counsel’s attention to two decisions of this Court, namely R v Hancox [1989] 3 NZLR 60 and R v Wickremasinghe CA137/03

21 August 2003.  At the hearing, Mr Downs, for the Crown, accepted that the trial prosecutor had misstated the law and that the trial Judge had insufficiently directed the jury.  The Crown accepted that the appeal had to be allowed and the conviction quashed.  Mr Downs sought an order for a new trial.  Mr Hall, for the appellant, did not oppose that.

[7]      In light of the Crown’s concession, we need explain only briefly the Crown’s error so that the error is not repeated at the new trial.

[8]      The evidence at trial was that Customs had opened the parcel on 12 January

2005 under the supervision of Mr Swindley a Senior Drug Investigator with the New Zealand Customs Service. On removal of its cover plate a collection of foil packages was observed.  One of them was removed and within it was another bag containing Contac NT granules.  Mr Swindley repackaged the parcel and returned it to the Customhouse, placing it in a Security Express satchel which he stored in the Customs safe pending delivery.  That delivery took place on 14 January.

[9]      What Hancox and Wickremasinghe establish is that the importation of the Contac granules came to an end once the decision was made to retain them in Customs’ custody.  For someone to be a party to that importation, he or she would have had to be involved prior to that time.

[10]     In the absence of agreement between the Crown and the appellant, it was essential that the jury determine when the decision to retain was made, so that an end point to the process of importation was fixed: see Wickremasinghe at [9] and [10]. This point was not explored in the evidence at all.

[11]     The  major  evidence  against  the  appellant  being  his  acceptance  of  and signature for the package in the name of the addressee, it was crucial that the jury should understand its precise legal significance.

[12]     The prosecutor failed to concentrate on what the appellant’s involvement had been up to 12 January 2005 (if that be the date of the Customs’ decision).  Rather, counsel focused on the appellant’s state of knowledge of the contents of the parcel when he signed for it on 14 January 2005, the day of delivery.

[13]     The prosecutor’s final address was erroneous in setting out the issues for the jury’s determination.  He said, for instance, that the crucial issue was:

…whether or not [the appellant] thought, at the time that the package was delivered, that it was in fact going to be a controlled substance, and that’s putting it in very simplistic form, but the Crown say, if you are satisfied of that, you will be satisfied of the accused’s guilt in this trial.  …In this case, there is no direct evidence that the Crown have produced, or adduced, to show  just  exactly  what  he  did,  or  he  did  not  know,  and  it  would  be impossible really to do that because we’re asking us [sic] to go inside the accused’s head at the time that he committed the offence.  [Emphasis added.]

[14]     There were other passages to like effect.  The point is that the crucial time was not what the appellant knew at the time of delivery.  As Wickremasinghe makes clear, that evidence is relevant only insofar as it may enable inferences to be drawn that the appellant was involved in this importation at some time before 12 January

2005.  Nowhere was that explained by the prosecutor.

[15]     We have sympathy for the judge, who had in mind the fact that the critical time was when the drugs entered New Zealand and directed the jury:

[76]      The fourth element, which is the crucial element, is that that person, the person who caused or arranged for the drugs to be brought into the country, with the knowledge that they were a prohibited drug and with the intention that they be brought into the country, was the accused.  That is the crucial issue which you must decide.

[77]      Putting it in the form of a question, and really following on from what I have already said in my discussion about inferences, the question which you must answer is as follows.

[78]      Is  the  only  reasonable  inference  which  can  be  drawn  from  the evidence that Mr Mason knew that the package was for him and what it contained and that he was instrumental in having it sent to him?

[79]      If  you answer that  question  “yes”,  Mr  Mason is  guilty.    If  you answer that question “no”, Mr Mason is not guilty.

[16]     But at [60] the Judge had directed the jury as follows without the passages we have added in parentheses:

… if you think it reasonably possible that the package was delivered to Mr Mason’s home in Keighleys Road in January this year without his prior knowledge of what it [had] supposedly contained, i.e. the pseudoephedrine, then you must not find Mr Mason guilty.  It is only if you conclude that the only reasonable inference which can be drawn from the evidence which has been put before you is that he [had caused the package to be sent to himself and] was [therefore] fully aware of what the package [had] contained [at the time it entered New Zealand] that you would be entitled to reach a guilty verdict.

So like the Crown submissions, that actual direction focussed attention on the time of delivery.

[17]     In the light of the erroneous Crown submission it was necessary for the Judge expressly to correct that error, which was not done.   Hearing the direction at [60] without such correction the jury could well have taken the view that the Judge was endorsing Crown counsel’s submission.     In that event there would have been a conflict with [76]-[79].  We cannot speculate as to what they may have made of this.

[18]     The Judge did not expressly tell the jury that the importation had ceased once the drugs were retained by customs and so the delivery of the package and the important  element  of  the  appellant’s  signature  occurred  after  the  offence  was

complete; that such conduct could not itself constitute the act of importation and that it could at most be evidence from which inferences could have been drawn as to earlier participation in the offending which concluded prior to delivery.   The jury should have been so directed.

[19]     While [76]-[79] were consistent with such direction they were incomplete and [60] was in the circumstances misleading.

[20]     It followed that the summing-up as a whole so risked misleading the jury that there has been a miscarriage of justice.

[21]     We therefore allowed the appeal and directed a retrial. After we announced there would be a new trial, Mr Hall applied for the appellant to be bailed pending the new trial.  The Crown did not oppose bail.  Bail terms were agreed.

[22]     We recommend that the prosecutor and  the  Judge  on  the  new  trial  read Wickremasinghe, which contains useful passages from the summing up of the trial Judge in that case, which were approved by this Court.

Solicitors:

Crown Law Office, Wellington