R v McMillan HC Wellington CRI 2005-085-5104
[2007] NZHC 1785
•4 June 2007
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2005-085-5104
THE QUEEN
v
KENNY LESLIE MCMILLAN GREGORY PHILIP ROLSTON SARA EMMA LYNCH VANESSA HELEN VINING
Hearing: 16 May 2007
Appearances: P K Feltham & S Barr for Crown
Dr D Stevens QC for Accused McMillan
P S Coles for Accused Rolston
R Stevens for Accused Lynch
L Ord & M Lillico for Accused Vining
Judgment: 4 June 2007
SUMMING UP NOTES OF MILLER J
R V MCMILLAN AND ORS HC WN CRI 2005-085-5104 4 June 2007
CONTENTS
Introduction: 10.10 am
SECTION 1: GENERAL DIRECTIONS The duty of Judge and jury
No prejudice or sympathy
The onus of proof
The standard of proofThe evidence
Consider each count separately
More than one accusedSECTION 2: SUMMARY OF CROWN AND DEFENCE CASES
Inferences
Admissions
Overview of the Crown case
Court adjourns: 11.00 am Court resumes: 11.14 am The case for each side – Counts 1, 5, 7-9
Count 1
Count 2Count 3
Count 4
Count 6
Counts 5, 7, 8 and 9
Count 10Count 11
Count 12
Count 13
Count 14
Count 15Count 17
Count 18
Count 24
Count 25
Count 26Count 27
Count 28
Specific directions in relation to evidence Where accused does not give evidence Character evidence
Identification
Expert evidence
SECTION 3: CONCLUDING REMARKS Unanimity
Conclusion
Jury attendant sworn in: 12.45 pm Jury Retire: 12.45 pm Jury Return: 12.52 pm Jury adjourn: 12.54 pm Question 1: 5.25 pm Wednesday 6 June 2007
Question 2: 10.38 am
Question 3: 3.10 pm
Verdict: 3.27 pm Jury adjourn: 3.33 pm Court adjourns: 3.35 pm
Introduction: 10.10 am
[1] Members of the jury, it is now my task to sum up the case for each side and to give you directions to guide you in reaching your verdicts. Counsel have touched on some of the things I have to say, but it is necessary that you hear them from me.
[2] What I have to say will be in three parts:
a) The first part covers general matters that relate to all criminal trials.
b)In the second part, I will explain the elements of the charges, and sum up the case for each side and give you some directions regarding evidence.
c) In the third part, I will give you some directions about your deliberations and your verdict.
SECTION 1: GENERAL DIRECTIONS
The duty of Judge and jury
[3] At the outset I will explain again the difference between your functions and mine. As Judge, it is my responsibility to direct you about the law that applies to the case. You are bound to follow any directions I give you about that.
[4] As the jury, it is your responsibility to decide all questions of fact. I play no part in that. If you think I am expressing a view of the evidence or of any witness that you disagree with, you should disregard what I have said.
[5] It is for you to decide what evidence you will accept or reject, or what weight you give to any part of it. You are not required to accept or reject all of the evidence of a particular witness. You may accept or reject parts of the evidence as you see fit.
No prejudice or sympathy
[6] Frequently feelings of sympathy or prejudice can be aroused in criminal trials. You may have strong feelings about drugs for instance.
[7] You must put such feelings to one side. You must approach your task in a way that is impartial and fair – that is fair to the accused and fair to the community, which is represented here by the Crown.
The onus of proof
[8] The next point – and it is most important – is that the onus of proof is on the Crown, which must prove each essential ingredient of the charge. It rests on the Crown from beginning to end. There is no onus on the accused at any stage to prove his or her innocence. He or she does not need to give evidence himself or herself or call anyone else as witnesses.
The standard of proof
[9] The Crown must prove that an accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met if, at the end of the case, you are sure that the accused is guilty, and only if you are sure that the accused is guilty.
[10] It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.
[11] What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.
[12] In summary, if, after that consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. It is your duty to do so. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty.
The evidence
[13] You must come to your verdict solely upon the evidence that you have heard in this Court. If any of you have any previous knowledge of this case or of the persons involved, then put that knowledge entirely out of your minds. It is the accused’s right to be judged only on the evidence in this Court.
[14] You should consider all of the evidence. It includes not only the sworn evidence that you have heard from witnesses giving evidence in the witness box, but also the exhibits that have been produced.
[15] You have heard suggestions from all counsel about what may or may not have happened. However, the submissions of counsel are not evidence. They are only a commentary on the evidence. Of course these comments give you a helpful focus on the case from their differing points of view. Nor should you treat the questions that counsel asked of any witness as evidence, unless the witness agreed with the point that counsel was making.
[16] I should note at this point that there was criticism of the police investigation in evidence; for example, failure to fingerprint certain items, and to explore Mr Rolston’s financial records. Your task, however, is not to speculate on what further investigations might have shown. It is for the police to decide what investigations to undertake and what evidence to lead. The question for you is simply whether the evidence you have seen and heard satisfies you that the accused are guilty. If,
having regard to what the defence says about the evidence, you are left unsure, you will acquit.
[17] Collectively, you form a group of people with common sense and experience of life. You will apply those qualities in considering and weighing the evidence and reaching your verdicts.
[18] For example, it would be sensible to consider the reasonableness of evidence, and whether other evidence in the case supports it. Ask yourselves whether witnesses are reliable, in that they had an opportunity to observe what happened, and are accurate and careful. Remember that a witness can be honest and sincere but also mistaken.
[19] You will also consider whether witnesses are credible or truthful.
Consider each count separately
[20] In this case, there remain 24 separate counts or charges in the indictment on which you will be asked for verdicts. They are tried together for reasons of convenience and economy, but each is a discrete charge that you must consider separately. You must do so in an orderly way, assessing the evidence that is relevant to that count, and reaching a conclusion. The order in which you approach a decision on each count is entirely up to you - but you must not assume that because you reach a verdict of guilty (if that is your view) on one count, then the accused must be guilty of the others. Each must be considered separately. When I sum up the case for each side, I will draw your attention to the evidence that is relevant to each count. That will take a little time in this case, because there is some evidence that is admissible, that is which you may consider, only on some counts.
More than one accused
[21] The same considerations apply where there are more than one accused. You must consider each separately and the evidence relevant to each. Again, you must
not assume if you reach a particular verdict in respect of one accused, that the same verdict will apply to the other(s).
[22] That does not mean that you have to be unanimous in your reasons for reaching the verdicts. You are free to reach your conclusion by different paths. But whatever route you take, you must in the end all be in agreement that the accused is guilty or not guilty on any given charge.
SECTION 2: SUMMARY OF CROWN AND DEFENCE CASES
[23] You have a copy of the indictment.
[24] I have prepared two documents which I will now ask the Crier to hand out. The first takes the form of a series of jury questions. It is up to you whether you use it, but I suggest you may find helpful in structuring your discussions.
[25] The other document is a jury memorandum which deals with the legal elements of the each offence. I will now go through that. I just emphasise at this point it does not deal with the evidence, only the legal elements.
[26] (Memorandum annexed read to the jury.)
[27] That is all I want to say about the legal elements of the offences.
Inferences
[28] Before outlining the case for each side, beginning with the Crown, I should explain that the Crown’s case depends in part on inferences to be drawn from proved facts.
[29] For example, the sort of evidence I am talking about is that it was the accused who sent texts or made calls. The Crown asks you to infer from the content of the messages, and the fact that phones were in possession of the accused, that it was they who made the calls or texts. And it asks you to infer from such conduct that the
accused conspired to supply methamphetamine. Proof of what the accused knew and intended depends on inferences.
[30] Now as a jury you may act on inferences based on facts that you find are properly proved. If you find that certain facts are proved, you may well feel justified in coming to the conclusion, although there is no direct proof of it, that another fact may be inferred, as a matter of logic and common sense, from the facts that have been proved. In this way, for example, you can draw inferences about what the accused intended from the facts that have been proved. If you are following another vehicle in your car for instance, and you see the left hand indicator come on, you will infer that the driver means to turn left. That is an everyday process.
[31] However, the point that I must emphasise is that an inference must be a proper inference drawn from the facts, not speculation or guesswork. If you think that, from the proven facts, two conclusions are equally open, then to choose between them would be to guess. If that is the case, you should look to see whether there is other evidence from which the Crown can prove its case.
[32] You can also rely on inferences drawn from a number of separate facts. When a series of reliably established facts coincide with each other in a way that carries conviction in the minds of a jury, that can amount to proof beyond reasonable doubt. So it is the cumulative effect that may be important.
[33] Taken individually, each fact may not prove very much. But if, when you put them all together, you find that as a matter of common sense and logic the only conclusion you can come to is that the accused is guilty, then that is sufficient. Conversely, if the cumulative effect of the facts does not reach that standard and still leaves gaps, then the evidence obviously does not amount to proof beyond reasonable doubt.
[34] The analogy that is often used is that of a rope. A rope is made of many strands. Separately the strands may not support much weight. But if enough are woven together, they will do so. And so it is with evidence of this sort. It is for you
to say whether you are satisfied that there is such a combination of facts or events that you are satisfied beyond reasonable doubt.
Admissions
[35] The other and very important point I should make by way of introduction deals with the use that may be made of statements made by the accused out of court. That just means things they said to the police, or to other people, including things that were said in intercepted calls or conversations or texts. You will appreciate that much of the Crown case depends on evidence of out of court statements of this sort.
[36] I told you at the beginning of the trial that a statement made by one accused to the police out of court is admissible against that accused only. In particular, the statement made by Mrs Vining to the police is evidence against her and her alone. What she said about the other accused in her statement is relevant to her own state of mind but it is not admissible against them. The reason for that, as I explained, is one of simple fairness. The other accused were not present when she made her statement, and they were in no position to challenge it. So when you consider the case against them you must put it to one side. If you fail to do that then the accused will not receive a fair trial and it is your job and mine, as judges of the facts and the law respectively, to see to it that they do.
[37] Now the rule that admissions are evidence only against the person who made them applies generally to out of court statements; that is, it is not limited to statements made in a police interview. It applies, for example, to text messages or telephone calls or intercepted conversations.
[38] So the ordinary rule, if I can illustrate this by taking a conversation or call between Mr McMillan and Miss Lynch as an example, is that what was said by Mr McMillan is admissible against him but not against her and that’s the basic rule. However there are two exceptions to the rule. The first is that if a statement by one person is adopted or its truth acknowledged by an accused then it is also evidence against that accused. The person making the statement need not be a co-accused. Again, I will take the example of an intercepted conversations between Mr McMillan
and Miss Lynch. A statement by Mr McMillan on one of those occasions that Miss Lynch did something is admissible against her if you are satisfied that she adopted it or acknowledged the truth of what she said. The reason is that by adopting it she has really made the statement her own.
[39] The second exception is a special exception that applies only to certain specified counts. When I come to each of them in turn I will tell you which they are. The exception is that an out of court statement by one accused is admissible against another accused, if the jury is satisfied that the statement relates to something done in furtherance of an agreement between them to commit a crime. I emphasise that the statement must be made by a party to the agreement before it is admissible. And it must relate to something done to further an agreement to commit a crime. The effect of the exception is that if Mr McMillan, for example said something the jury may take it into account against him and Miss Lynch and Mr Rolston if satisfied that it related to something done in furtherance of an agreement between them to commit a crime. The jury may do that even though Miss Lynch and Mr Rolston were not present, when he said this, and did or said nothing to signify acceptance of what he said. This exception is called the co-conspirators rule. I will need to return to it just to emphasis what it requires when I deal with the specific counts.
[40] You will appreciate from what I have just said that some of the evidence is admissible, that is you can take it into account on some counts but not on others. So at this point I should mention at this point the schedule that Miss Feltham gave you in closing. It is an index to the texts and intercepted conversations that the Crown relies on in relation to each count. Defence counsel were content for you to have it, because counsel recognised that it will be helpful for you in identifying the evidence on which the Crown relies in relation to each count. However, I should make three points about it. First, it is only the Crown’s view of what is relevant and admissible on each count, thus you must consider it subject to what I have to say. Second, not all of the texts and voice conversations under each count will be admissible against all of the accused. Some of them may be admissible against only one. For reasons I have just explained, a text written by one accused that is relevant to say count 1 may be admissible against only that accused. It will still be listed in the schedule, because it is relevant to count 1. Third, the schedule obviously refers only to out of
court statements; the Crown obviously relies on other evidence, such as the physical evidence of drugs and cash seized.
[41] I should also mention at this point, while I am dealing with admissions, that you heard Miss Lynch and Mrs Vining plead guilty to possession of methamphetamine on 28 July; that is counts 19 and 20. And Mr McMillan pleaded guilty at the end of the Crown case to counts 21, 22, and 23. You won’t be asked for a verdict on those counts, as I explained at the time, but you may be wondering about the evidential significance of the pleas. The answer is that a guilty plea by one accused is not evidence against any other accused, again because it is an admission by just one of them, and it is a decision that the others had no control over. So fairness dictates that you cannot take it into account against any other accused. However, you may take guilty pleas into account against the accused who entered them to the extent that they are relevant to any other charge. For example, the fact that Miss Lynch and Mrs Vining were in possession of methamphetamine in the early hours of 28 July may tend to support the Crown case that Mrs Vining delivered some to Miss Lynch the evening before.
[42] These principles about admission of evidence are not easy to grasp and recognising that, I will summarise them or remind you of them as I come to the points in the case where they really matter.
Overview of the Crown case
[43] The Crown’s says there was a business relationship among Mr McMillan, Miss Lynch, and Mr Rolston, the purpose of which was the distribution of methamphetamine. Mr McMillan is said to be at the top of the supply chain, and Mr Rolston at the bottom. His role is said to be that of a supplier to others. The Crown says that a number of the charges in the indictment reflect drug dealing that took place as this conspiracy bore fruit, or payment for drugs. It also says there were independent drug dealing activities. Mr McMillan is said to have been a cannabis grower and dealer, while Miss Lynch dealt in ecstasy and GBL. Mr Rolston is separately accused of possessing methamphetamine for supply in August, after the conspiracy was brought to an end by police intervention, and of receiving stolen
firearms. Lastly, Mrs Vining’s role is said to have been limited to the events of 27 and 28 July.
Court adjourns: 11.00 am Court resumes: 11.14 am The case for each side – Counts 1, 5, 7-9
Count 1
[44] I remind you that the alleged conspirators are Mr McMillan, Miss Lynch, and Mr Rolston. Mrs Vining is not charged with conspiracy at all, and she really does not feature in the narrative at all until the events of 27 July. The conspiracy alleged covers the period between 1 January 2005 and 28 July 2005.
[45] Now the evidence of this conspiracy comes mostly from intercepted texts and telephone calls. Texts were intercepted from April 2005, and telephone calls from 5
July. Interception devices were also placed in two locations in Miss Lynch’s home on 21 July. Detective Hansen considered the transcripts of these communications and gave evidence about the terms used in them. He said that the language used is indicative of codes used for drug dealing. Codes are used to identify the drug and the weight or quantity of it.
[46] To recap, evidence of what was said in a call or intercepted conversation, or a text message, is admissible against the accused who was speaking or writing the text. Evidence of what was said by another person is admissible against the accused if the accused accepted or adopted it. So to give you an example, a demand by Mr McMillan that he wanted his money is admissible against Miss Lynch if she accepted she owed him the money. And the co-conspirators rule is available on count 1. So evidence of what A said is also admissible against B and C if what was said involved furthering a conspiracy involving A, B and C. Again, for example, a
conversation between Miss Lynch and Mr Rolston setting up a meeting would be admissible against Mr McMillan even though he was not involved in the conversation, so long as the meeting was set up to further a conspiracy among the three of them to supply methamphetamine from McMillan via Lynch to Rolston.
[47] I should mention two particular issues that emerge from the transcripts. First, there are many examples of insults and abuse in the transcripts between Miss Lynch and McMillan, with them calling one another drug users or dealers. These statements are very colourful but their relevance is limited. They can be relied on as evidence against the person who was speaking, in that they may be relevant to his or her knowledge of their business relationship, or state of mind, but they are not evidence against the other unless he or she adopted it or acknowledged its truthfulness. Whether he or she did so is for you to assess. Nor are these exchanges evidence against Mr Rolston unless you are satisfied that they tend to prove things done to further the conspiracy to supply methamphetamine. You may think that, for the most part, they relate rather to a disintegrating personal relationship. For example, one of the themes of these exchanges was Miss Lynch’s relationship with a Greek man, presumably Mr Mihos, who had nothing to do with the conspiracy.
[48] The other issue is that there are several instances of Miss Lynch communicating with other people, mostly unknown women, to complain about Mr McMillan. These are admissible only against her, because of course there is no question of them being adopted by Mr McMillan or anyone else, nor do they relate to anything done to further a conspiracy. This assumed some importance in evidence because she claimed in one such call to an unknown female that he had acquired 5 properties and the defence went to some trouble to rebut this claim. Ms Lieven gave evidence about that, saying that he does not own 5 properties but had an interest in only 1. The point I want to make is that what Miss Lynch said here is admissible against her to show her understanding of the nature of her business relationship with Mr McMillan but it is not admissible at all against Mr McMillan and you must put it to one side when you consider the case against him.
[49] Before you rely on texts or intercepted conversations, you obviously must be satisfied about who was writing or speaking. That is, you must be sure that the
Crown has correctly identified the accused as the person speaking. For this the Crown relies on a number of sources. First is the phone numbers used to make the texts or calls. The Crown says these were associated with the accused; they were the subscribers to some of the phones or were found in possession of them, or gave their names when they made calls on them, or gave the relevant phone numbers when asked for their numbers on arrest, or the phone numbers are connected with their addresses. It also says that the details of the calls or messages confirms that the accused were speaking, because for example the calls or messages coincide with other evidence of the accused’s activities or because names or other identifying details were mentioned. By way of example, it refers to texts between Mr Rolston’s and Miss Lynch’s phones on 24 May, which is the evening on which Mr Kerr, the security guard, claimed he saw Mr McMillan and Miss Lynch in an Audi near Tennent Drive. Those texts may suggest Miss Lynch went to Mr Rolston’s place at that time. And there was evidence that police officers who transcribed voice messages recognised the voices of the accused.
[50] Some of the accused accepted that they were the authors of texts and calls on which the Crown relies, but that was not invariably accepted. So you have to be sure about identity. Mr Coles in particular made this point. The point was made in cross- examination that you cannot be sure about who was always in possession of the phones or who was speaking or texting on any given occasion. Other people can use a phone associated with a given subscriber obviously. Names were not generally used, and a letter might not signify an initial eg the letter “G” might not mean Gregory.
[51] The defence also observed in cross-examination that you only heard a small percentage of the intercepted communications; thus the defence says the police missed things that were or may have been exculpatory. Some messages are not easy to decipher.
[52] Turning to what the Crown says the evidence proves, Ms Feltham said that the Crown asks you to infer that a conspiracy existed by looking at what the accused said in the texts and conversations, and what they did. She took you through the sequence of events to show the way in which meetings were set up between Miss
Lynch and Mr McMillan Mr Rolston, and says that the communications show that methamphetamine was moving one way and money the other. She highlighted what she said is the use of code words and false names, the otherwise remarkable sequencing of meetings, and when and where they were held. She says the meetings became more and more frequent, driven by Mr McMillan’s insistence.
[53] The Crown acknowledges that Mr McMillan did not text or call Mr Rolston directly, but it says the arrangement was nonetheless closely co-ordinated. Ms Feltham also pointed out that Mr McMillan was also seen in the Audi near Tennent Drive when one of the meetings was held. It characterises the conspiracy as a very disciplined one, in which Mr McMillan went to some effort to ensure that he kept his distance from Mr Rolston and to ensure that he was not identified with drug dealing, for example keeping his drugs elsewhere. He was a careful operator; that is one point on which the Crown and the defence appear to be in agreement.
[54] The Crown says that may explain why no methamphetamine or associated equipment was found on search, apart from the small quantities that are the subject of counts 19-21. It also says that what was happening on 27 July was that Mr McMillan was insisting on repayment of a large debt that had built up, so the absence of methamphetamine in commercial quantities may not be a surprise.
[55] Now all counsel dealt with count 1 and counts 5 and 7-9 as a group, so I will do the same. That is sensible because the Crown case on count 1 includes the evidence in support of Counts 5, 7, 8 and 9. These are said to show that the conspiracy not only existed but was put into effect.
[56] When you consider counts 5 and 7-9, you can rely on evidence of the previous relationship among the three accused. The co-conspirators rule is available. So I repeat that to the extent that the Crown relies on out of court statements, you can rely on anything said by an accused when considering the position of that accused, and you can rely on anything said by any person if the accused whose position you are considering adopted it or acknowledged its truth, and other out of court statements by co-conspirators are also admissible on these counts, if they relate to something done to further the agreement to sell methamphetamine. So what I am
really saying here is that all of the evidence that can be relied on for count 1 is also admissible on counts 5 and 7-9, and the converse is also true.
[57] The Crown says these specific counts illustrate a chain of supply from McMillan via Lynch to Rolston. Starting with count 5, the Crown says that Mr McMillan supplied Miss Lynch with methamphetamine, at Petone on 11 June. She then promptly drove to Kapiti and met with Mr Rolston to whom the Crown says she delivered the drug. It points to texts setting up the meeting between 4 and 11 June, and the text from Mr McMillan after the meeting saying he gave her the wrong bag.
[58] From that point on, the Crown says, the meetings became very frequent. Ms Feltham took you through what the Crown says is the sequence culminating in Counts 7-9, which relate to a supply of methamphetamine from McMillan to Lynch, and from her to Mr Rolston on 17 July. This sequence illustrates what was going on, the Crown says, because there are references to money and code words for methamphetamine.
[59] The specific transaction covered by counts 7-9 began with Mr McMillan supplying Miss Lynch at Upper Hutt with ‘pictures’, which the Crown says means methamphetamine, and ended with her supplying Mr Rolston in Waikanae a little over an hour later.
[60] The Crown also relies on Ms Pask’s evidence that Mr Rolston met Miss Lynch at 3am at a service station in Paraparaumu on one occasion in July. It says this is eyewitness evidence of the sort of meeting that occurred on a number of occasions, although the evidence does not establish exactly when the meeting she attended was held.
[61] Count 7 is the supply from Mr McMillan to Miss Lynch which I have just mentioned. Count 8 is the supply by Miss Lynch to Mr Rolston. It obviously requires proof that McMillan first supplied her because the Crown says that it was the same methamphetamine. Thus, it is really a pre-requisite to a guilty verdict on count 8 that you first find count 7 proved.
[62] Mr McMillan is charged as a party to the supply by Miss Lynch because the Crown says he encouraged or assisted her to supply Mr Rolston. I have set out in the jury memorandum what it means to be a party to an offence. The Crown says you can infer that he knew what Miss Lynch was going to do, assisted and encouraged her to do it, and acted in the knowledge that what he did would assist and encourage her.
[63] Count 9 rests on proof that Miss Lynch supplied Mr Rolston since again it is said to be the same drug. Unless there is proof that she gave him the drug the Crown will fail to prove possession against Mr Rolston. The Crown must then prove Mr Rolston’s purpose in possessing the methamphetamine was that of supply. Proof of purpose rests on what the Crown says is the business relationship among the three and the nature of the meeting, late at night with Miss Lynch driving some distance to meet first McMillan then Rolston.
[64] So that is all I want to say to summarise the Crown case on counts 5 and 7-9.
[65] Returning to the remainder of the Crown case on count 1, the Crown also relies on the transfer of cash on 27 July to confirm that the conspiracy existed and was put into action. As you heard, it says a drug debt that had built up following supply by Mr McMillan via Miss Lynch to Mr Rolston was being repaid using the same communications channel. The Crown says the texts also make it clear that the conspiracy was all about methamphetamine because that was the drug Rolston was asked to hand over, taking it off what he owed. I will return to the evidence later, under count 15. In the meantime, I note that the Crown schedule relating to count 1 lists the texts and voice messages said to prove the payment. As I have said, those are admissible on count 1 against any given accused if that accused was speaking or adopted what was said, or if you are satisfied that what was said related to something done to further a conspiracy among the three of them to supply methamphetamine.
[66] Next the Crown also relies on what was found at Tennent Drive on 28 July. That is cash, surveillance gear, small snaplock bags, electronic scales, several phones and a number of SIM cards. Detective Hansen told you about these indicators as he called them.
[67] Next is payments to Miss Lynch relating, the Crown says, to transactions with Mr Rolston. The Crown also relies generally on what is said to be the large sums of cash said to be associated with Mr McMillan and Miss Lynch in particular.
[68] I now turn to the defence cases. All counsel properly emphasised the need to be sure before you convict on any count.
[69] So far as count 1 is concerned, Mr McMillan says he had nothing to do with supplying methamphetamine at all. Something was supplied on 11 June and 17 July
– those being the dates of counts 5 and 7-9 - but it was not methamphetamine. The alleged conspiracy is said to be about methamphetamine, and Mr McMillan says the Crown has failed to prove that. It was a conspiracy about cannabis, which he supplied to Miss Lynch and she to Mr Rolston. He says that all the evidence points to that, including what was found at Waikanae. He accepts he used methamphetamine, and that he dealt in cannabis, but he did not deal in methamphetamine.
[70] I should emphasise at this point that if you accept this analysis of the case, or if what Mr McMillan says leaves you unsure about what he was supplying, and what the conspiracy was about, then you must acquit him on counts 1, 5, 7, and 8. You cannot convict him on these counts simply because he admits dealing in an entirely different drug. The Crown has alleged methamphetamine and that is what it must prove. This point applies equally to Miss Lynch and Mr Rolston all of whom advance the same defence on this point.
[71] Mr McMillan says that the Crown case is speculative, thus you cannot be sure. Mr Donald Stevens took you carefully through the evidence. He said that the term ‘crack’ used abusively by Miss Lynch in a text when speaking of Mr McMillan is not a term associated with methamphetamine. In any event, he emphasised that things she said when they were discussing their relationship, if I can put it in that neutral way, are inadmissible against him unless he adopted them or accepted they were true. That is correct, as I have explained, and it is for you to decide whether he did so. I add at this point Mr Stevens took you through what Mrs Vining said in her interview, emphasising it was not only inadmissible against Mr McMillan but also
guesswork on her part. Again, he was right to say it is inadmissible, as I have already explained.
[72] Mr Stevens next emphasised that no commercial quantities of methamphetamine were found. All that was found were two very small amounts that resulted in charges of possession only. This shows only that he was a user; and counsel suggested you can see that in some of the conversations, which may illustrate the adverse effects of that drug, such as paranoia and anxiety and aggressiveness. Nor did the police find any of the things associated with dealing. Counsel pointed to the absence of things like scales, stocks of point bags, and indicators of that sort that Detective Hansen told you about.
[73] Mr Stevens next suggested that the things found at Mr Rolston’s address on
28 July are consistent with cannabis dealing. A large amount of cannabis was found. You heard evidence that Mr Rolston pleaded guilty to possessing that. Yet nothing was found to indicate methamphetamine at Mr Rolston’s house on that day. Nor was anything to do with methamphetamine found at Seaview, where Mr McMillan clearly stored his drugs, although that facility was searched twice. Mr Stevens emphasised that the methamphetamine found on Mr Rolston on 18 August had nothing to do with Mr McMillan, who obviously had been arrested on 28 July.
[74] Thus Mr McMillan says that the Crown case on count 1, and counts 5, 7, and
8, rests entirely on an interpretation of what the Crown says are code words used in the texts and calls. For example, there is no indication of what was supplied on 17
July except that McMillan said he would give her pictures. He says you cannot be sure that pictures means P; it might also be a code for pot, or pounds, or some other code unique to these people. The meaning of a letter can also depend on context. The defence says you cannot be sure that they were referring to methamphetamine.
[75] In support of that, counsel took you to conversations that indicated, he said, that others were supplying Miss Lynch with methamphetamine. He asked why would she do that, if she was getting it from McMillan. Further, nowhere in the evidence is there a request from her to McMillan for methamphetamine for her own use; the defence says that is because he was not a supplier of that drug.
[76] Consistent with his thesis that Mr McMillan was actually supplying cannabis to Mr Rolston, and not methamphetamine, counsel pointed out that the bags at Seaview are of the same type as those found containing cannabis at Mr Rolston’s home on 28 July. He also suggested that the records of Mr McMillan’s use of the Seaview facility are consistent with the dates of meetings on which the Crown relies. He accessed the facility on 11 June at 8.03 pm, and soon afterwards met with Miss Lynch. On 17 July, he used it after the meeting.
[77] Turning to the cash found on Mr McMillan on arrest, some $39,000, counsel suggests some of it came down from Mr Rolston via Miss Lynch, but not all of it. The money was split up in various amounts and places, some in bags and some on his person. Counsel suggested that what may have come from Mr Rolston was a smaller sum, perhaps the $4,000, and that sum is said to be consistent with cannabis dealing. The rest of the money might have been the proceeds of cannabis supplies over a longer period of time, or of legitimate activities. There is evidence that he decided he was going to hide all his money away.
[78] Miss Lynch says that the Crown has failed to prove that she was engaged in any drug dealing activities. The evidence establishes only that she was a user of methamphetamine and GBL. She does not accept that there was a conspiracy. The late night meetings and coded messages are evidence of some sort of illicit conduct, and ‘in all likelihood’ it was cannabis, but the evidence does not prove what it was she was supplying. So she does not admit there was a conspiracy nor does she admit that it concerned methamphetamine.
[79] She adopts what Mr McMillan says on the proposition that it was not methamphetamine. She too says that ‘pictures’ need not mean methamphetamine, and that there is nothing else to say that it was. It could mean pounds or product, for example. Detective Hansen, who gave evidence about the use of codes, was involved in the investigation, so he was said to lack independence that is expected of an expert witness. And counsel suggested that he was not very experienced in drugs other than cannabis. It was suggested that the term ‘policies’ did not refer to methamphetamine either; there is clear evidence that there were genuine insurance policies in this case, and genuine payments made to AXA. There are not many
references to the term policies, and in context they do refer to insurance, for instance she tended to discuss policies during normal hours. Thus, the defence says you cannot be sure that the codes refer to methamphetamine. She too emphasises that the only drug found in quantity was cannabis.
[80] So far as the cash was concerned, Miss Lynch accepts it was evidence of “something fishy going on”, but says it was not methamphetamine. The sums found are said to be consistent with a substantial cannabis growing operation of the sort that Mr McMillan may have been running.
[81] Miss Lynch also says you must discount the communications passing between her and Mr McMillan; they were abusive and reflected a disintegrating relationship.
[82] Mr Coles adopted what Mr Donald Stevens had to say about what was coming up from Wellington. He too accepts there was a conspiracy, but he says it was to do with cannabis and not methamphetamine. If you are unsure about that, as I have already said, you must acquit him also on count 1 and 9. Mr Coles told you that the substantial quantity of cannabis found at Tennent Drive on 28 July is consistent with what Dr Stevens said about count 1 and the other methamphetamine counts 5 and 7-9. He also took you to texts about the meetings that Mr Rolston had with Miss Lynch, and suggested that they are consistent with cannabis dealing or legitimate meetings. There were only nine meetings in four months, and counsel suggested that just two of those were held at strange hours.
[83] Mr Rolston also says that you cannot be sure the things found at Tennent Drive on 28 July were his. He pointed out that at least one other person lived at the property, and noted the absence of fingerprint or other evidence specifically identifying those items with him. He also emphasised that there is nothing to show they were specifically connected with methamphetamine, such as residue on the scales. They may be consistent with cannabis. The point was made that Mr Rolston also collects things like scales, and of course no methamphetamine was found.
[84] And in relation to the cash, he says that he had a number of reasons for having it; he has other business interests such as life insurance and a business called Realm and employment with Higgins Contractors. That can explain his two cellphones, and the police did not call any evidence about the memories on the eight SIM cards. His business interests included selling surveillance gear, a business that he conducted openly and for which he might be paid in cash. You heard evidence that he was a financial advisor with AXA at the time, and there were documents tending to confirm that at the address. There was also evidence that Mr Williams owned the cash, which he had given to Mr Rolston to put into a cash management fund. He had a receipt for this. It was also pointed out in cross-examination that Mr Rolston had also been drawing down a personal loan. For all of these reasons, Mr Rolston says you cannot be sure that the cash found on 28 July was the proceeds of dealing in methamphetamine.
[85] Counsel also emphasised that there is no evidence that Mr Rolston had a tendency to pay cash for things, or income that cannot be accounted for.
[86] I should emphasise that under count 9 the Crown must also prove that Mr Rolston, having ended up with the methamphetamine, then held it for the purpose of supplying it to others. If the Crown fails to exclude the reasonable possibility that he had it for personal use then you must acquit him on count 9. On that point, there is no evidence as to the quantity in his possession. The defence also says he was an addict. As I understood it, the defence was focusing particularly on count 28 in making this point, but it also applies here.
Count 2
[87] This count rests on an intercepted communication on 22 July at Miss Lynch’s home, in which she talked to Mr Mihos about what the Crown says is the supply of methamphetamine to her sisters the preceding Christmas, in Auckland. This charge stands apart from the conspiracy and the evidence is confined to the intercepted conversation. The co-conspirators rule is not available. That is, the Crown can rely on what she said and also on what Mihos said to the extent that she adopted it.
[88] The Crown says she spoke of buying a gram for $800. It was to be smoked using a pipe. The price, quantity and method of use prove it was methamphetamine. She said it was poor quality but you can infer that it was methamphetamine nonetheless. After all, she left it with her sisters to smoke it.
[89] Miss Lynch says that you cannot be sure it was methamphetamine. It may be correct that that is what she thought it was when she bought it, but there is nothing to show that it was methamphetamine in fact. Counsel pointed to the absence of ESR analysis. Of course the Crown does not have to produce an analyst’s certificate to prove what the drug was; it can rely on any evidence that the jury finds reliable. That is, the Crown may bring charges of this sort without having to first physically seize the drug. But you must be sure, and the point that Mr Stevens was making for Miss Lynch is that an ESR certificate is the only way of being sure in this case. The tablets found on 11 July were thought to be ecstasy, for example, but proved to be something else. And the conversation with Mr Mihos records her saying “it didn’t do anything” and “smelt bad” and so on. So if you are left unsure that it was methamphetamine, then you will acquit.
Count 3
[90] This count alleges money laundering by Mr McMillan by concealing cash, using it to buy art through a person, Miles Tilly, who acted as his agent. The Crown says that all of the elements of money laundering are present; the cash was the proceeds of drug dealing, Mr McMillan concealed it through his agent Mr Tilly by exchanging it for art, and he did so knowing it was the proceeds of drug dealing and with intent to conceal the cash. It points out that documents associated with the purchase of the paintings were found at the Akatarawa property, proving it says that he was the actual buyer. It relies on the exchange of texts on 20 April 2005. It says that payment was made a couple of days later, in cash. It says you can be sure that was the proceeds of drug dealing, because buying art in this way is one way of disguising unusual quantities of cash and because there is evidence, the Crown says, of Mr McMillan having large sums of cash about that time; he was in the habit of paying cash for travel and frequent parking infringements. I should remind you at
this point that the Crown does not have to prove it was the proceeds of dealing in any particular drug, so long as it was a controlled drug.
[91] The Crown can also rely on out of court statements by Mr McMillan, and out of court statements made by anyone else, such as Mr Tilly in text messages if Mr McMillan adopted them or acknowledged their truth. It cannot rely on the co- conspirators rule.
[92] Now Mr McMillan does not deny buying the paintings with cash. He accepts also that he was dealing in cannabis, although he does not accept that the Crown has proved that the money used on this occasion was the proceeds of drug dealing. He emphasised that you cannot be sure that he intended to conceal the money by buying paintings. He says he was just buying some art. As I have explained, the Crown must prove that he intended to conceal or disguise the fact that the money was the proceeds of drug dealing.
Count 4
[93] This count alleges supply of Ecstasy by Miss Lynch on 3 June. It has nothing to do with the alleged methamphetamine conspiracy so the co-conspirators rule is not available. The evidence in support of this count is confined to text messages between her and someone called Matt, in which it is said that she set up a meeting to deliver ecstasy. That she did so is confirmed, the Crown says, by his later complaint about its quality. She responded that others said it was good, and he said he tried it again and some was good while some was not. The Crown relies on other texts tending to show, it says, that she supplied Matt on a number of occasions. For the most part, her drug supplying was said to be social; some of it involved sharing with others. But in Matt’s case she was paid, the Crown says, referring to what it says is money paid to her bank account. The Crown acknowledges that he complains about the quality of the ecstasy, but says that she maintained it was good, that he accepted that, that he asked for more, and that this deal took place some time before the police searched her home on 11 July. That last event is significant because the police found pills that looked like ecstasy, but a scraping of one of them proved to be an analogue that is not a controlled drug and so is not illegal.
[94] The defence says that it may appear that she supplied ‘Eric’ as it was named in the texts, but you cannot be sure that that is what it was. The very next day Matt complained about its quality; it was no good and he might have to return it. The defence points out that she said she couldn’t confirm it was good because she had not tried it. His complaints continued for about 10 days. Counsel suggests that what was supplied was probably the analogue found on 11 July. So the defence emphasised that you cannot be sure that it was ecstasy. If you are left unsure about that, of course you will acquit.
[95] Counsel also suggested that this count does not prove that she was in the business of selling drugs; she was doing Matt a favour. I should caution you about that, because supplying someone with drugs as a favour is still supply in law, so long as the drug was handed over for the other person to use or sell, and Miss Lynch knew it was a controlled drug.
Count 6
[96] This charge of possession concerns a small sample of MDA seized during a covert search of Miro St on 11 July. It was in powder form. You heard evidence that this drug is also known as ecstasy. It is a class A drug while its close relative MDMA, also known as ecstasy, is a class B drug. There are no texts dealing with this offence. The co-conspirators rule is not available. So the charge depends on the physical evidence found at her home. The Crown says it was her home and that it was found in her bedroom, in her drug use kit, so it asks you to infer that it was in her possession.
[97] The defence admits it was in her physical custody, and proved to be MDA, but Miss Lynch says you cannot be sure that she knew it was a controlled drug. If so she was not in possession of it in law, as I have explained, and you must acquit. The Crown must prove that she knew it was a controlled drug of some sort. The defence points out that Ms Sibley told you that MDA is rarely found in powdered form, so Miss Lynch may not have known what it was.
Counts 5, 7, 8 and 9
[98] I have already dealt with counts 5, and 7-9.
Count 10
[99] This is the first of the five charges against Miss Lynch involving GBL. These have nothing to do with the alleged conspiracy in count 1, or indeed with methamphetamine. Thus the co-conspirators rule is not available on any of the GBL counts, that is 10-14. The Crown says that these counts involve Mr Antonopoulos, a supplier of GBL to Miss Lynch, and Mr Mihos, a friend who she supplied with the drug but who also supplied her on occasions.
[100] Count 10 alleges supply of GBL on 22 July, by sharing it with Jimmy Mihos at her home. Sharing with a friend is supply, as I have said, so long as you are sure that she did hand it over, knowing it was a controlled drug, and that he did consume it.
[101] The Crown’s case rests primarily on the transcript of conversations intercepted in her home on 22 July. It is said to record her and Mr Mihos together consuming GBL that she had supplied. The Crown concedes that Mihos had supplied her on 14 July, but it says that she then got GBL from Antonopoulos on 18
July. The Crown points particularly to references about taste, and to using her reserves, and says it is evidence that she was pouring the drug. The Crown also relies on texts and calls between Miss Lynch and Antonopoulos preceding this date to show that he was regularly supplying her with GBL. Bottles of the sort used to carry the drug were found at her home during the covert search on 11 July. And it relies on GBL found at her home on 28 July to confirm generally that she was using and dealing in it.
[102] The defence says, and I emphasise that this point applies to all the GBL counts, that she was a user of the drug, but not a supplier. Counsel took you to examples of her looking for supplies of it, starting in April. She went to a number of sources including Mihos. The defence says you cannot be sure that she supplied him
on this occasion rather than the other way around. Mr Mihos later pleaded guilty to supplying her on 14 July, some eight days before this charge, and the defence says that she may still have had some of that on 22 July because she referred to her reserves. If you are unsure about who was supplying who, if it is a reasonable possibility that Mihos brought the drug to her house and shared it with her, then you must acquit her.
[103] I should mention that counsel suggested that she was asking Antonopoulos on one of these occasions to get GBL for her and a friend; that is, he suggested it was being supplied to them both by Antonopoulos. Now I need to caution you about that. If she bought the drug from Antonopoulos, intending to share it with a friend, and then did share it, then she is still a supplier in law because she first got possession of it and then supplied it to the friend, knowing it was GBL. It would be a different matter if Antonopoulos met them both and handed the drug to them together; in that case, she would not be supplying her friend.
Count 11
[104] This alleges possession of GBL for supply on 23 July. The Crown says she went to Wellington and took possession of GBL from Mr Antonopoulos, intending to supply it to others. You heard from Detective Hansen who said he followed her Audi into Wellington at about 10pm, and then saw Miss Lynch and Mr Antonopoulos in the car at about 11.20pm. He got out and it appears that she drove back to Eastbourne where he later saw her car. There are texts said to be associated with this transaction in which it is said to be clear that he is supplying her with 30ml of GBL. The Crown says you can infer that her purpose was supply, for she got
30ml and she did in fact supply, by sharing the drug with Mihos within hours of getting it from Antonopoulos.
[105] The defence says that they did arrange to meet, but it appears that he may not have supplied her with GBL, and if so of course you cannot conclude that she was in possession of GBL. They may have waited unsuccessfully for Antonopoulos’ own supplier. Later that evening, she and Antonopolous arranged to meet again; the defence says that must have been a meeting intended to supply her, but it says there
is no evidence that the supply actually happened. Thus it is reasonably possible, the defence says that she never obtained GBL at all. Even if she did, the defence also says the Crown has not proved a purpose of supply; you cannot be sure that it was intended for supply because it may have been for her own use.
Count 12
[106] This is the alleged conspiracy with Antonopoulos on 23 July to supply GBL to another, Lucas Hayward. The evidence on which the Crown relies is the calls involving Miss Lynch and Hayward and Antonopoulos. It says these prove the necessary agreement and the shared purpose of supplying GBL under the agreement. The Crown says you can be sure that she phoned Antonopolous with the intention that Antonopoulos would meet Hayward to supply him, and that Antonopoulos agreed to this. Also the Crown relies on evidence that the relationship between Mr Antonopoulos and Miss Lynch was that of supplier and customer of GBL.
[107] This is a conspiracy count but it has nothing to do with count 1 or methamphetamine, and the only evidence is of communications involving Miss Lynch. The Crown thus does not rely on the co-conspirators rule.
[108] The defence says that the evidence does not prove an agreement between Lynch and A to supply GBL. There is no mention of GBL. She simply said that Hayward wanted to get in touch and got Antonopolous’ permission to give Hayward his number. The defence emphasises that you must be sure that there was an agreement, and you must be sure that the conspirators intended that it would result in supply of a drug, and you must be sure that that drug was GBL. Unless the Crown proves each of these things, then you will acquit.
Count 13
[109] This is another count alleging supply of GBL by sharing it with Mr Mihos at her home, this time on 24 July. The Crown again relies on intercepted communications, saying they prove she was the supplier on this occasion.
[110] The Crown says that although they spoke of a harsh taste and later speculated that Tina was masquerading as Gina, you can be sure it was GBL. Antonopoulos was her regular supplier, and there is no evidence that she complained to him about it. Mihos was arrested with methanol containing traces of methamphetamine on 18
August, but the Crown says there is nothing to suggest that was the same drug that she shared with him on 24 July.
[111] The defence says the conversations probably show the two of them sharing a substance, but you cannot be sure that it was GBL. It tasted strong and harsh, and they doubted its quality; it was ‘bad stuff’ and something had been put in it. Counsel pointed out correctly that the transcripts do not say that something had been put in it, but it is the recordings themselves that are the evidence. There are references in succeeding texts to Tina masquerading as Gina; that is, the defence says they may have thought it was GBL but in fact the evidence suggests it was not. If you are left unsure whether it was GBL, you will acquit.
Count 14
[112] This count alleges possession of GBL for supply on 25 July. The Crown says a meeting was set up with Antonopoulos, and then held; you can infer that he supplied her with 15ml of GBL at Days Bay, and that her purpose in having it was that of supply. It says you can infer the purpose from her pattern of behaviour, which indicated that she at least intended to share it.
[113] The defence says that although he offered GBL she wanted methamphetamine; she wanted a ¼ gm of that drug and did not want GBL from Antonopolous, perhaps because the last supply was bad. The reference to a quarter means something measured by weight, the defence says, and GBL is not measured in that way. So there may have been no supply of GBL to her, and if so the Crown has not proved she was in possession of that drug, and of course that means she must be acquitted. In a later conversation, the defence says, she admitted to McMillan that she saw someone to get ¼ gm. That someone, the defence says, was Antonopoulos.
[114] The defence further says that you cannot be sure that she had it for supply. The quantity alleged by the Crown, 15ml, does not justify an inference that she had it for that purpose. The defence points out that there is evidence that 3-5ml is a normal dose, and she used it often. Had it been meant for sharing, which is the only way in which the Crown points to her supplying it, then there would have been evidence of Mr Mihos coming round to her place shortly afterwards.
Count 15
[115] This is the alleged money laundering transaction involving cash carried from Palmerston North to Wellington by Mrs Vining on 27 July and there, the Crown says, handed to Miss Lynch who handed it, or most of it, to Mr McMillan. Some
$39,000 was found on him, and a total of $10,500 in the house.
[116] There is an important point here about the evidence. When it comes to count
15, evidence of the voice communications, that is cellphone, landline, and intercepted conversations in Miss Lynch’s house, are not admissible at all, against any accused. There are legal reasons for that which I need not go into. The effect of this is that you can take the voice communications into account on count 1, as I have explained, but you cannot do so on count 15. When you come to look at intercepted communications as evidence on count 15, you may rely only on text messages. This means, for example, that the conversations in Miss Lynch’s house between her and Mrs Vining, or her and Mr McMillan, are not admissible on this count. Nor are any telephone calls. You must put all of these to one side. You will see if you look at the Crown schedule for count 15 that the only out of court statements listed are text messages. So the simple rule is, put all intercepted voice communications to one side when you consider count 15.
[117] Subject to that very important limitation, the co-conspirators rule does apply against Mr McMillan, Miss Lynch and Mr Rolston. That is because this cash is said to be the proceeds of methamphetamine dealing over a period of some time, and part of the conspiracy alleged in count 1. So far as Mr McMillan and Miss Lynch and Mr Rolston are concerned you can rely on texts written by each accused or adopted by
that accused when considering the case against that accused, and you can also rely on any texts sent by the other two in furtherance of the conspiracy.
[118] You will have noted that this is the first charge in which Mrs Vining is implicated. It is important to bear in mind that she is not said to be party to the conspiracy to supply methamphetamine. The evidence that is admissible against her is much less extensive, and it all relates to what happened on 26 and 27 and 28 July. You can take into account anything Mrs Vining wrote in a text, or any text that someone else wrote that she adopted. I emphasise the texts because, as I have said the intercepted voice communications are not admissible on count 15. You can also take into account against her any text that any other accused wrote at that time relating to the transfer of money from Mr Rolston to Miss Lynch and Mr McMillan on 27 July, if satisfied that what they wrote in the texts was about furthering an agreement among all of them, including Mrs Vining, to transfer the money from Rolston to Lynch and thence to McMillan. That is a separate and much narrower agreement than the agreement to supply methamphetamine that is alleged in count 1.
[119] The Crown’s case begins with texts preceding 27 July that are said to relate to Mr McMillan demanding what was his, and Miss Lynch making arrangements with Mr Rolston to organise the money and get it to her so she could hand it over to Mr McMillan. The three accused set up the delivery, which took place on 27 and 28
July. Miss Lynch arranged to meet Mr Rolston earlier but had her car impounded by the police on 26 July, so had to make other arrangements. She asked Mrs Vining to collect the money and bring it to Eastbourne. All this, the Crown says, is proved by the texts.
[120] The Crown asks you to infer that the money found in the jeep and the house was the proceeds of drug dealing, and that all of the accused knew it or were reckless about that. I remind you that the Crown does not need to prove that it was the proceeds of methamphetamine rather than cannabis.
[121] The Crown says that the money laundering took the form of transferring the cash from Mr Rolston to Mr McMillan via Miss Lynch. It says that each of the accused actually dealt with the money by handing over possession of it or, in Mr
McMillan’s case by asserting possession of it, and that each assisted the others in the ultimate object of getting it to Mr McMillan. The whole transfer took place in a covert way. The money was disguised by being wrapped up and the texts discussing it were coded; all of this was done to disguise the source of the money and its destination; that is, to conceal it. As I have explained, it is enough that the accused intended to disguise, or to help someone else to disguise, where the money came from or what its destination was. It may be that the accused were repaying a debt owed to Mr McMillan, rather than converting cash to some other asset. But that can still be money laundering, if they intended to disguise the source of the money. The Crown says that was indeed their purpose, because they wanted to disguise the fact that it was the proceeds of drug dealing, and that involved disguising both the source of the payment and its destination.
[122] So far as McMillan is concerned, the Crown points to the evidence that he went to Miro Street to get the money late at night, took it in a bag, put it into his vehicle, and headed home. It says he was thereby asserting possession and ownership of the money. That is enough to amount to dealing, if you find that he was indeed doing those things. It says you can infer that he meant to conceal all of the money found in his possession, including that which was the proceeds of drug dealing.
[123] Mr McMillan says you cannot be sure that he dealt with the money for the purpose of concealing it. Merely to take the money and drive away is not enough. The money that he admits receiving from Mr Rolston via Miss Lynch was just a payment for cannabis supplied, with no intent to disguise it. Counsel reminds you correctly that you cannot use the final intercepted conversations at Miro Street to prove that he intended to conceal the money for this purpose.
[124] For Miss Lynch, the Crown says that she not only transferred the money to McMillan but also assisted him and concealed the money by arranging its transfer to Wellington in a coded way, referring to it as a makeup bag.
[125] Miss Lynch says that she was not involved in money laundering at all. She got money from Mr Rolston, for Mr McMillan, and it was likely a payment for
cannabis. But she just passed it on. She says that was not a dealing. I remind you that transferring possession is dealing with property, however, so the issue for you, when you consider the question of dealing, is whether she did transfer possession of the money. She also says she did not intend to conceal it or help anyone else to do so. That is, it was just a payment. Of course as I have said, the Crown must prove that she did so intend.
[126] Mr Rolston is said to have dealt with the cash by giving it to Mrs Vining. He did that for the purpose of concealment, talking about it in his texts in a coded way. He not only concealed it himself, but helped Mr McMillan to conceal it by sending it to him with Mrs Vining.
[127] Mr Rolston says that the pressure about payment of money was from Mr McMillan to Miss Lynch, not from Miss Lynch to Mr Rolston; that is, you cannot be sure that all the outstanding money was owed by Rolston, because she dealt with others also. If that is so, you cannot be sure that the money came from Mr Rolston, and in that case the Crown has failed to prove that he dealt with the money at all. He admits that money did go back to Wellington to pay for cannabis, but if the money on 27 July fell into that category - that is, if you do accept he gave it or some of it to Mrs Vining for delivery to Mr McMillan - then you cannot be sure he meant to conceal it. He says he would not care what happened to it once it left his hands.
[128] So far as Mrs Vining is concerned, the Crown says that she agreed to, and did, meet Mr Rolston to pick up the money. It says she knew what she was carrying. That is she actually knew it was money, and knew, or strongly suspected it was the proceeds of drug dealing. It was all arranged in a covert way, with references to a makeup bag and cigarettes, but she knew what she would be picking up and by participating in this way she intended to help conceal the money. The Crown says that even if she did not know what was going on when first asked to help, she knew by the time that she picked the money up.
[129] When it comes to Mrs Vining’s position, I have said that you may take into account her out of court statement to the police. The Crown says it shows she knew she was carrying money and that it was the proceeds of drug dealing, or was at least
reckless about that. So it is relevant as to what she knew, and what she intended. Of course it is not admissible against any other accused, but it is admissible against her.
[130] Mrs Vining says that she was in the wrong place at the wrong time, and that it is that alone that explains her presence at this trial. She is an unwitting participant, having been roped in to help out a sister in crisis on the last day of a lengthy police investigation. Counsel placed emphasis on her good character, her modest circumstances, and her sense of family obligation.
[131] Counsel properly emphasises that you cannot allow the charges against the other accused to taint your view of Mrs Vining, because became involved at the very end and in a peripheral way. The Crown does not say that she had any prior involvement at all.
[132] Turning to the specifics of count 15, Ms Ord emphasised that Sara spoke to Michelle, another sister, and Mrs Vining agreed to go to Wellington, not to deliver money but to help recover the impounded car. Miss Lynch had plans about the money but only at the last minute was Mrs Vining asked to call at Mr Rolston’s place to pick up a makeup kit. Then she was asked to get cigarettes as well.
[133] The defence says you cannot be sure that she understood what the Crown says were codes for money and methamphetamine. In her interview she said she thought Sara meant medication. The defence concedes that she suspected that there was money, but not drugs, when Rolston handed her the bag. It says you cannot be sure that she knew she was bringing money down. Now I have said that you must be sure that she actually knew she was carrying money. So if you are not sure about that then you must acquit.
[134] Nor does the defence accept that there was any intention to conceal the money, if the Crown has proved that she dealt with it. The defence says it is ridiculous to think that she meant to conceal money by carrying it from A to B as a favour to someone else. Ms Ord asked why, in the circumstances, would she turn her mind to concealment at all.
Count 17
[135] This concerns methamphetamine that Mrs Vining is said to have supplied to Miss Lynch on 27 July. The Crown can rely here on intercepted voice and text communications. The co-conspirators rule is not available, so the Crown must rely on the evidence of the drug found at the house, and what Mrs Vining said, and on anything that Miss Lynch said, in a text or intercepted conversation, if Mrs Vining adopted it.
[136] The Crown case against Mrs Vining on count 17 is that at Miss Lynch’s request she asked Rolston for half a carton of cigarettes and take it off what he owed; that in context is said to refer to methamphetamine. The Crown says she knew very well what was being supplied because she asked him for it and he got it and handed it over in her presence. It says she confirmed in texts that she knew what Miss Lynch was talking about. The Crown also relies on Mrs Vining’s statement to the police in which the Crown says she admitted to knowing what it was.
[137] Mrs Vining says she never knew that she was bringing drugs to Wellington; if that is what she was doing. She just had a package, well wrapped up, which she did not open. She may have suspected it contained money, but you cannot be sure that she knew about the drug. If that is so, the Crown has failed to prove supply, because as I have told you, supply requires actual knowledge that she was handing over a controlled drug. The defence says the conversations relied on by the Crown do not prove that at all. Counsel noted that the transcript at Cream 114 incorrectly says that he put his hand in the bag; in fact, she said that he handed her the bag. Nor has the Crown proved that there was in fact methamphetamine in the package; that too must be proved, as I have explained. The defence says Cream 115 does not prove that. The quantity found at the house does not fit with the code said to have been used, which raises a doubt about what it was that she brought down; that is, whether it was methamphetamine at all. In the video interview Mrs Vining said she did not think there were drugs in the package, and she also said that that she did not think that Miss Lynch would get her to unwittingly transport drugs.
Count 18
[138] The Crown says that Miss Lynch returned some of the methamphetamine to Mrs Vining as a reward for bringing the money and drugs to Wellington. A gift, if that is what it was, is supply in law if Miss Lynch handed it over to Mrs Vining to do as she wished with, knowing that it was a controlled drug. Again the co-conspirators rule is not available so the Crown must rely on the evidence of the drug found at the house and on Mrs Vining, and what Miss Lynch said, and on anything that Mrs Vining said in those communications if Miss Lynch adopted it. It cannot rely, and I emphasis this, on Mrs Vining’s admissions, including her guilty plea to possession, and her statement to the police. The Crown can rely on Miss Lynch’s own guilty plea as evidence that she had methamphetamine in her possession at the time. That may tend to supply the Crown case that she supplied some of it to Mrs Vining.
[139] The Crown relies specifically on the intercepted conversations between Miss Lynch and Mrs Vining. They include those texts in which the pickup was arranged from Mr Rolston; and the intercepted conversation in her house in which the Crown says she handed over the methamphetamine as payment for acting as courier. And as I have said, what Miss Lynch said in those communications is admissible against her as is what Mrs Vining said to the extent that Miss Lynch adopted it. The Crown says it is clear from the intercepted conversations that there were two bags of the drug that came from Mr Rolston; one ended up with Miss Lynch and the other with Mrs Vining.
[140] Now Miss Lynch says that the admissible evidence against her does not prove that she supplied it. That is, you cannot be sure that Mrs Vining first gave her methamphetamine and then she returned some of it. The quantities do not add up because on the Crown case Miss Lynch asked for ½ gm but more than that was in the bag found in Miss Lynch’s own possession. It may well be that what was found on Mrs Vining was her own; she was an occasional user and had a pipe. And it is possible that Rolston gave it to Mrs Vining directly, because they were close to one another.
Count 24
[141] The allegation is that Mr McMillan cultivated cannabis at the Akatarawa property between 1 January 2005 and 28 July 2005. Clearly it was not being cultivated when he was arrested on 28 July, so the question arises when it was done, if at all. As I have said, it is enough that the Crown proves it was done within a reasonable time of the dates specified in the indictment; so you could still convict Mr McMillan if you concluded that it happened within a reasonable time before 1
January. What is a reasonable period is for you to assess, but I suggest that at most it would be a period of months. You heard evidence that Mrs Zandonati left the property she said, several years before, and was not responsible for the evidence of cannabis cultivation. There is evidence that Mr McMillan’s parents bought the property in April 2004.
[142] You must be sure of course that cannabis was cultivated, and that Mr McMillan did it. As to whether it was done, the Crown says that the remnants of plastic sheeting, the hooks, the buckets and piping, the transformer, the granules said to be fertiliser and the associated box, are all evidence of indoor cultivation of cannabis using hydroponics and lights. Detective Hansen told you about how it is grown, and he thought that the buckets were the heart, as he called it, of a hydroponics system, where the nutrients are mixed with water. Transformers are used for growing lights. The fertiliser, if that is what it is, is consistent with hydroponic cannabis growing. Hooks and plastic in the room are consistent with mounting of grow lights and heat and moisture retention respectively, while white polythene provides a reflective surface to maximise light. The Crown asks you to infer that having gone to all the effort needed to set this up Mr McMillan then used it.
[143] As to whether it was Mr McMillan, the Crown points to the fact that he lived there, and invites you to infer that it was he who used the equipment. The Crown says that you can be sure that Mr McMillan lived there from that time, despite the defence evidence that it was tenanted for about a year, because the landline at that address was in Mr McMillan’s name from April 2004 until October of that year.
[144] The defence says you cannot be sure that cannabis was grown at all, still less that Mr McMillan did it and did it within a reasonable time of the period in the indictment. Mr McMillan does not own the property, does not live there alone, and was not in occupation at all times. Ms Lieven gave evidence about those matters, saying that the property was tenanted for some time after Mr McMillan’s parents bought it. Thus these items might have been left by the tenant. You heard from Mr Wilmhurst gave evidence about going to the property with Mr McMillan in, he thought, late 2004 although he could not be sure, and meeting an older man who he thought lived there. In October 2004 the phone was transferred into a false name used by a Mr McNally. Thus you cannot be sure, the defence says, that Mr McMillan used these items at all. Further, Detective Hansen could not be certain that the buckets were the heart of a hydroponics system. Had he grown cannabis indoors he would have needed other items, but they were not present. Indoor growing needs electrical equipment; lights, pumps, ventilation fans. The police looked for but did not find evidence of a spike in power consumption, which may suggest that cannabis had never been grown or that it had been grown a long time before. No cannabis plants were found. These thing together, the defence says, must leave you unsure, and if so of course you will acquit.
[145] Of course, this count has nothing to do with the alleged methamphetamine conspiracy in count 1. So you cannot rely on evidence supporting that count when you consider this count. This point applies equally to counts 25 and 26. Count 24 therefore rests primarily on what was found at the property, and the inferences that may be drawn from that, although the Crown can also point to the cannabis found at Seaview and the equipment at Waikanae and Mr McMillan’s guilty plea to possession for supply as tending to support the conclusion that he was dealing in cannabis. That evidence does not in itself prove, of course, that he was grew it at Akatarawa but it is evidence that you may take into account.
Count 25
[146] The equipment the Crown may rely on is the buckets and associated hose connections connected to them, the transformer, and the black piping.
[147] The Crown relies on the evidence that Mr McMillan lived at the property, and invites you to infer that he was in possession of these items. I have already referred you to that evidence. It says the equipment was capable of being used for that purpose. Detective Hansen gave evidence about that. And it invites you to infer from his possession of such equipment that he intended that it would be used.
[148] The defence says that Mr McMillan was not in possession of the equipment. I have already outlined the evidence about that. The point in short is that the defence says you cannot be sure that he was in possession because you cannot infer from the fact that he lived there sometimes that he was in possession of this equipment. In other words, you cannot be sure that he knew it was there, had control of it, and intended to exercise control. It points out that there are no prints to associate the items with him. If you are unsure about possession, you will acquit.
[149] The defence also says that you cannot be sure that the equipment was capable of growing cannabis. Its just some piping, buckets, and a transformer. The defence suggest that if anything it suggests a different system for growing plants, a non- hydroponics one.
[150] Lastly, the defence says you cannot be sure that he intended that it would be used to grow cannabis in the future; if, contrary to the defence case, you do accept that it was capable of being so used, you nonetheless cannot be sure that he meant to use these remnants or fragments of a hydroponics system in the future. No cannabis plants were found and the defence says that mere possession does not justify an inference that he meant to use it.
Count 26
[151] The Crown case here is that Mr McMillan was in possession of the equipment found at the property and that it was capable of being used to grow cannabis. The Crown asks you to infer from his covert possession of such equipment that he intended that it would be used.
[152] Now the defence accepts he was in possession of the equipment and that it was capable of being used to grow cannabis. He says however, that you cannot be sure that he had it for the purpose of using it in the future. Rather he might have intended to sell it.
[153] Now I observe that the offence is committed if he intended that it be used to grow cannabis, whether by him or anyone else. So the Crown does not have to prove that he intended to grow cannabis himself using this equipment. The defence point, as I understand it, is that because he may have intended to sell it, you cannot assume that he intended that it be used to grow cannabis and that is because this sort of equipment is capable of being used for legitimate purposes. So that is a matter for you to assess.
Count 27
[154] This is the charge of receiving firearms against Mr Rolston. There is no dispute, as I understand it, that they were stolen; Mr Allomes told you that they were taken in a burglary. The issues are whether they were in Mr Rolston’s possession at all and, if so, whether he knew they had been stolen or was reckless about that.
[155] As to possession, they are bulky and even if concealed in boxes it is inevitable, the Crown says, that he knew of them and took control of them. It was he who was in control of the property; Ms Pask had just begun to live there and in any event denied the weapons were hers, and the woman who tenanted the separate flat kept to her own space. As to knowledge or recklessness, the Crown points to the receipt of a large number of weapons, saying that they are not the sort of thing that one acquires casually, in their broken down condition.
[156] The defence says you cannot be sure that he was in possession. The facts show only that the stolen weapons were found hidden on 28 July. There is no evidence of his prints on the weapons. The flat was tenanted, and the tenant or anyone else might have been responsible for hiding the firearms there. Thus the Crown has failed to prove possession. And of course if it does prove possession you must also be satisfied that he knew they had been stolen or was reckless about that.
Count 28
[157] This count concerns the methamphetamine that the Crown says Mr Rolston had secreted between his buttocks when arrested on 18 August. It says there is no doubt that it was methamphetamine, and that he had possession and that the quantity far exceeded 5 gm, the level at which the presumption operates. It was high quality, worth about $12,400 at street level. The Crown refers to the evidence of Sergeant Warren that $6,480 in cash was found in the house on 18 August, in a wardrobe and pair of jeans, suggesting that is evidence of drug dealing. That of course is different from the cash found on 28 July. Also a set of electronic scales was found, ESR examined them and found traces of methamphetamine. The Crown says that evidently Mr Rolston had replaced not only the scales seized on 28 July but also a stock of empty point bags. And there were several mobile phones.
[158] This count has nothing to do with the conspiracy alleged in count 1; that was brought to an end on 28 July. So you cannot rely on statements by co-conspirators. The only out of court statements of previous dealing that are admissible against him are his own statements, or statements by others that he may have adopted.
[159] If you are satisfied that it was methamphetamine and that he had possession of it and that it exceeded the presumption amount, then as I have said, he is guilty of possession for supply unless, on the balance of probabilities, he can show that he had it for some other purpose. I just remind you that I have set that all out in the jury memorandum.
[160] The defence does not dispute that he had possession or that it exceeded the presumption amount. Rather, Mr Rolston’s case is that it is more likely than not that he had it for personal use. He called evidence from Mr Williams and Ms Pask of his heavy addiction to methamphetamine at the time. Mr Rolston says only addiction can explain his decision to get methamphetamine when he already knew that the police were keenly interested in him, and his further decision to try to hide it on his person when he knew he would be strip-searched. He had time to hide it; if he was a dealer he would have flushed it away instead of wrapping it in toilet paper. Detective Hansen agreed that the drug is addictive and addicts have increased
tolerance; that is they need more and a higher quality to get the same effect. The defence says a user can consume a point at a time and it is cheaper to buy in bulk. It was also suggested that the amount seized may have been worth much less than
$12,400. Mr Coles pointed out that the methamphetamine seized was not in point bags as you might expect had it been intended for sale, and a user might have scales to check that he had not been cheated. Counsel pointed to the absence of texts showing that he was supplying it to others. Legitimate business interests, or as I understood it the drawing down of a personal loan, may explain the cash.
[161] That is all I want to say by way of summary of the cases for each side. It has been lengthy I am afraid but that is necessary because of the way in which you have to pay attention to which evidence is admissible on which count. I just want to make some general points now about evidence.
Specific directions in relation to evidence
Where accused does not give evidence
[162] There is no onus on an accused at any stage to prove his innocence. He or she is not bound to give evidence. An accused can sit back and see if the prosecution has proved its case. One thing you must not do is assume that the accused is guilty because he or she has not gone into the witness box.
[163] Nor should you assume that the person is guilty if he or she declined to answer police questions after taking legal advice, as some of the accused did. It is every citizen’s right to remain silent in such circumstances, and it is quite normal for a lawyer to advise a person to exercise that right.
Character evidence
Mrs Vining called evidence of her good character. I should say that having a previously good character is obviously not of itself a defence. Nor is absence of previous convictions because there has to be a first time for everyone. This sort of evidence is however, relevant to her credibility. You may take it into account as part
of the evidence as a whole, in deciding whether it is likely that a person who has that sort of character is likely to have committed the crime. How much weight you give to it is entirely up to you.
Identification
[164] The Crown relies in part on the accuracy of the identification of some of the accused, and in case in particular, the defence says that they are mistaken. That is the evidence of Mr Kerr, the Chubb security guard, who identified Mr McMillan in the Audi near Tennent Drive.
[165] In that situation the law requires me to warn you about the need for special care before relying on identification evidence as the basis for a conviction. The reason is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. An honest witness who is convinced of the accuracy of what he or she says may well come across as very convincing, but may still be mistaken.
[166] Bear in mind that sometimes we all make mistakes in thinking we recognise people. That is not to say you should not rely on identification evidence. You may rely on it. The point I am making is that you need to be careful. You need to scrutinise the evidence carefully to see whether it is good enough to place weight on.
[167] I suggest that you think about the circumstances under which the witness saw the person at the time. For instance:
• How long was the person under observation?
• At what distance?
• What was the lighting like?
• Was there anything that physically impeded observation?
• Had the witness ever seen the person before?
• Was there anything about the situation that would cause him or her to take particular note of the person?
• How long elapsed between the event and any subsequent identification of the person? And what sort of identification was then made?
[168] Mr Stevens, for Mr McMillan, identified particularly the time of day, the absence of good lighting, the fact that the man was seated in a car, and a low-slung car at that, and the police use of a photo identification some months later. You will recall there was evidence that Mr Kerr was shown a group of eight photographs.
[169] A number of the witnesses, including Mr Kerr, also identified the accused in the dock. I suggest that you not should attach much weight to dock identifications. A witness asked to identify someone in court is very likely to focus on the person sitting in the dock. So it would be unsafe to rely on a dock identification alone, although you can take it into account along with other evidence.
Expert evidence
[170] You have heard evidence from Detective Stinson about fingerprints. You heard evidence from two ESR witnesses about drugs. You also heard from Detective Hansen about the illicit drugs industry in New Zealand.
[171] Normally witnesses give evidence only about what they saw, or heard, or did. They are not allowed to express opinions.
[172] But people who do have specialised qualifications and experience are able to give evidence of opinions about matters within their areas of expertise. They are allowed to do that because their expert evidence may help you understand things that are outside most people’s general knowledge.
[173] When assessing evidence of this sort, you have regard to the qualifications and experience of the witness and how independent they are. You will appreciate that there was criticism from the defence of the expertise and independence of Detective Hansen in particular.
[174] It is for you to decide how much expertise such witnesses have and how much weight or importance you are going to attach to what they say, or indeed whether you accept the evidence at all.
SECTION 3: CONCLUDING REMARKS
[175] That brings me to the last section of my summing up, dealing with deliberations and your verdicts.
[176] You will have the exhibits with you in the jury room.
[177] As to the evidence of witnesses, you will have three copies of the evidence transcript. That lets you check what a witness said on a particular issue. I give you a couple of warnings about using it.
[178] The first is do not become bogged down in analysing the detail of the transcript at the expense of the big issues. You will probably find it better to approach each issue on the strength of what you remember and any notes you made during the hearing. The transcript is not, in other words, a substitute for your collective impression of the evidence. I remind you it is not just what witnesses said that matters. The way in which they said it also matters.
[179] Second, if you do consult the transcript, remember that the evidence bearing on a particular issue will usually appear in more than one place. So a witness may have said something in the evidence in chief, and cross-examination and re- examination. And other witnesses may have said something about it too.
[180] If there is any part of that evidence you would like to hear again or, if you think that some further direction from me might be of assistance, please make a brief
note of what you want and give it to the Court attendant who will be outside the door of the jury room. In almost all cases that requires the Court to be reconvened we deal with it here in open Court.
Unanimity
[181] Your verdict on each charge is to be simply guilty or not guilty, as the case may be. Where there is more than one accused on any given charge, you will be asked for separate verdicts for each, in indictment order. So on count 1 you will be asked first for a verdict of Mr McMillan and then Miss Lynch and Mr Rolston for instance.
[182] No reasons or explanations are required. It is necessary, however, that your verdicts be unanimous, that is, the verdict of all 12 of you. A majority vote is not enough. The foreman’s job is to structure your discussions, but also to ensure that everyone gets a proper say. It is important that each of you listen to everyone’s point of view.
[183] When you have reached your verdicts, would you let the Court attendant outside the jury room know and the Court will be reconvened as soon as possible. The verdicts are given here again in open Court.
[184] The procedure for that, which affects mainly you Madam Foreman, is that the Registrar will ask you to stand and will ask you whether the jury has unanimously agreed on its verdict. Assuming it has, you say “Yes”. The Registrar will then ask you whether you find the accused guilty or not guilty on count 1, going through each accused in turn, and you will respond with whatever the jury’s decision is. We will go through each count in the same way. The Registrar will then ask whether you are all agreed. If you are, there is no need for any of you individually to say anything because the giving of the verdicts by the foreman in your presence without dissent is sufficient confirmation as far as the Court is concerned that it is the unanimous verdict. So you just confirm that is the verdict of you all, Madam Foreman, by saying “Yes”. The taking of the verdicts is then complete.
Conclusion
[185] That brings me to the end of my summing up. It has been lengthy, I apologise for that. After you have retired, I will ask counsel whether there is anything else I should have dealt with or anything I need to correct. If there is I will ask you to come back into the courtroom so that I can say anything extra that needs to be said.
[186] I now ask that the Court attendant be sworn.
Jury attendant sworn in: 12.45 pm
[187] Members of the jury, please retire and consider your verdict.
Jury Retire: 12.45 pm
[188] Counsel is there anything I need to add or any correction? Dr Stevens.
No. Mr Stevens:
There are three matters (discussion). Mr Coles:
No. Mrs Ord:
No.
Jury Return: 12.52 pm
[189] Members of the jury I have brought you back in because Mr Stevens for Miss Lynch pointed out I may not have clearly got across the substance of the defence case on count 18. In that summing up, I explain that the defence says the quantities do not add up because on the Crown case Miss Lynch asked for half a gram but more than that was in the bag found in her own possession. Mr Stevens pointed out that what he was trying to say was that if the reference in texts to getting half a carton of cigarettes is indeed a reference to half a gram of methamphetamine, that was being got from Mr Rolston, then that is almost exactly what she was found with. There was just a little more than half a gram, and the consequence of that would be that she did not part of that and give it to Mrs Vining. So in other words the inference that the defence says you should draw from that is that if she did get methamphetamine from Mr Rolston, she kept it and she did not supply it to Mrs Vining. And what Mrs Vining had her in possession must have come from somewhere else.
Jury adjourn: 12.54 pm
Question 1: 5.25 pm
[190] Madam foreman you have asked that the three audio recordings be replayed. That’s Cream 21, Red 18, and Red 24. We will now play those.
Wednesday 6 June 2007
Question 2: 10.38 am
[191] Good morning members of the jury. You have asked to have Cream 114 and Cream 115 replayed and we will do that in just a moment. I have been asked to remind you in relation to Cream 114 that there was evidence that there was an error in the transcript at page 475 of the transcripts where Mrs Vining is recorded as saying “he gave it to me, he put his hand in the bag”. You will see at page 293 of the
notes of evidence that the officer agreed that it sounded like “he handed me a bag”. So that was the evidence about but of course it is for you to listen to the actual recording itself and make what you wish of it, but that is the evidence. Those tapes will now be played to you.
Question 3: 3.10 pm
[192] Madam Foreman you have asked what I suspect at the end of the day is one question. How much weight do we put on location as set out in the indictment. You need to find as a jury that the alleged offence occurred at the location specified in the indictment. For example, is the difference between Waikanae and Paraparaumu as a location for supply significant. With respect you may be referring to counts 8 and 9, is that correct?
Yes.
I have discussed it with counsel and the instruction I will give you is that the place that an alleged crime occurred is not material unless it is necessary to identify the particular incident referred to. So it would be material if you needed to refer to the place to be satisfied that the incident you are referring to is the one that was alleged in the indictment, and it would not be material if there is other evidence such as the date by way of example only, from which you can be sure that the incident you are referring to is the one that the Crown has alleged in the indictment. So you need to make an assessment whether the place is material in that sense, in a sense that it is essential to identify the incident referred to.
Verdict: 3.27 pm
Place Kenny Leslie McMillan, Gregory Philip Rolston, Sara Emma Lynch and Vanessa Helen Vining before the Court. Would the foreman please stand. Members of the jury have you unanimously agreed upon your verdict?
We have.
On count 1, do you find the accused Kenny Leslie McMillan guilty or not guilty?
Guilty.
On count 1, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 1, do you find the accused Gregory Rolston guilty or not guilty?
Guilty.
On count 2, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 3, do you find the accused Kenny Leslie McMillan guilty or not guilty?
Guilty.
On count 4, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 5, do you find the accused Kenny Leslie McMillan guilty or not guilty?
Guilty.
On count 6, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 7, do you find the accused Kenny Leslie McMillan guilty or not guilty?
Guilty.
On count 8, do you find the accused Kenny Leslie McMillan guilty or not guilty?
Guilty.
On count 8, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 9, do you find the accused Gregory Philip Rolston guilty or not guilty?
Guilty.
On count 10, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 11, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 12, do you find the accused Sara Emma Lynch guilty or not guilty?
Not Guilty.
On count 13, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 14, do you find the accused Sara Emma Lynch guilty or not guilty?
Not guilty.
On count 15, do you find the accused Kenny Leslie McMillan guilty or not guilty?
Guilty.
On count 15, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 15, do you find the accused Gregory Philip Rolston guilty or not guilty?
Guilty.
On count 15, do you find the accused Vanessa Helen Vining guilty or not guilty?
Guilty.
On count 17, do you find the accused Vanessa Helen Vining guilty or not guilty?
Not guilty.
On count 18, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 24, do you find the accused Kenny Leslie McMillan guilty or not guilty?
Not guilty.
On count 25, do you find the accused Sara Emma Lynch guilty or not guilty?
Not guilty.
On count 26, do you find the accused Sara Emma Lynch guilty or not guilty?
Guilty.
On count 27, do you find the accused Gregory Philip Rolston guilty or not guilty?
Guilty.
On count 28, do you find the accused Gregory Philip Rolston guilty or not guilty?
Guilty.
And are you all agreed members of the jury.
Yes.
[193] The accused may stand down and I will deal with remands later.
[194] It remains only to thank you for your services. This has been a long trial and an unusually complex one and you have listened very patiently and paid close attention to a lot of evidence. I thank you on behalf of the community for the services you have given. You are all free to go now thank you.
Jury adjourn: 3.33 pm
[195] I am prepared in respect of Mrs Vining to entertain an application for bail pending sentencing not because I think she is likely to escape a custodial sentence but because it is conceivable in her case that she might be sentenced (inaudible) and have leave to seek home detention. I would like to (inaudible) that opportunity (inaudible) custody for a month before she is sentenced.
[196] The other accused are remanded in custody until 13 July. You will be remanded to appear for sentence on 13 July. I have told counsel that I will allow bail pending sentencing to Mrs Vining only. That is not an indication Mrs Vining that you will receive a non-custodial sentence, but I recognise that (inaudible) but it is possible that you will receive a sentence that allows you to apply for home detention. I give you bail so that it reserves the opportunity for you. I don’t say that to you (inaudible) what the sentence will be – I just don’t know.
[197] The others will be remanded in custody.
Court adjourns: 3.35 pm
F Miller J
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