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R v Rhodes

R v Rhodes

Case [2009] NZCA 486 19 October 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA91/2009
CA98/2009
CA141/2009
CA159/2009
CA162/2009
CA198/2009
[2009] NZCA 486
THE QUEEN
v
ALBERT JOHN RHODES (CA91/2009)
GLENN THOMAS DOUGLAS GOLLOP (CA98/2009 AND CA162/2009)
PAUL EDWARD ROBINSON (CA141/2009)
STEPHEN PAUL KISSLING (CA159/2009)
RICHARD HEBOLD RHODES (CA198/2009)
Hearing:30 September 2009 and 1 October 2009

Court:Robertson, Chisholm and Priestley JJ
Counsel:C J Tennet for Albert Rhodes

P J Kaye for Glenn Gollop
S Tait and J M Hudson for Paul Robinson
S P Ellis for Stephen Kissling
R A Walden and B S Cooper for Richard Rhodes
B D Tantrum for Crown

Judgment:19 October 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are all dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Table of Contents

Para No

INTRODUCTION  [1]
THE APPEAL ISSUES  [5]
BACKGROUND  [9]
THE JURY ISSUE  [22]
ALBERT RHODES – INSUFFICIENT EVIDENCE ON MANUFACTURING  [53]
ALBERT RHODES’S IMPORTING  [65]
ALBERT RHODES’S SUPPLYING  [68]
FAILURE TO PUT THE DEFENCE CASE  [71]
THE NATURE OF THE SUMMING UP  [77]
APPEALS AGAINST SENTENCE  [85]
            ALBERT RHODES  [86]
            STEPHEN KISSLING  [100]
            GLENN GOLLOP  [117]
            PAUL ROBINSON  [130]
RESULT  [144]
Introduction
[1]        Following a police operation codenamed “Operation Colossus”, a substantial number of people were charged with various offences under the Misuse of Drugs Act 1975.
[2]        There was a trial before Winkelmann J in September, October and November of 2008 involving the five current appellants together with Alex Su (who has not appealed against either conviction or sentence). The trial was scheduled to run for 12 weeks, although in the event it ran for nine. Relevant also were charges against Wayne John Smethurst who pleaded guilty prior to trial and was sentenced by Keane J on 29 July 2008: HC AK CRI 2006-092-16424 29 July 2008.
[3]        At the trial there were a total of 78 counts involving six accused. Not guilty verdicts were returned on some charges and guilty verdicts on others.
[4]        In the grounds of appeal filed, a variety of issues relating to conviction and sentence were signalled, but when the matter came on for hearing the challenges fell into more confined areas.
The appeal issues
[5]        Each of the appellants has challenged all convictions on the basis that the verdicts were returned by a jury of ten. It was submitted that what occurred did not meet the requirements of s 374(4A) (now repealed) of the Crimes Act 1961 (“the Act”) and further that, in the process which was followed, the possibility of contamination of the jury panel was real and not sufficiently taken into account by the trial Judge.
[6]        Three of the appellants also challenged their convictions on the basis of miscarriage of justice. Specifically:
(a)Albert Rhodes argued there had been a miscarriage on the basis that the summing up was unbalanced and there was insufficient evidence on some charges to implicate him;
(b)Glenn Gollop argued that there had been a miscarriage because there were errors in the summing up and it was unbalanced;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rhodes

Details

AGLC: R v Rhodes [2009] NZCA 486
Case: [2009] NZCA 486
Decision Date: 19 October 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeals against convictions and sentences of five individuals involved in a substantial drug manufacturing and supply operation were dismissed. The appellants, Albert Rhodes, Glenn Gollop, Paul Robinson, Stephen Kissling, and Richard Rhodes, challenged their convictions and sentences on various grounds. The primary issues centered on the validity of the jury's composition and the adequacy of the evidence to support the convictions, as well as the appropriateness of the sentences imposed. The Court found that the trial judge's decision to proceed with a jury of ten, rather than eleven, was justified under exceptional circumstances, and that there was no contamination of the jury panel. Regarding the convictions, the Court held that there was sufficient evidence to support the jury's findings of guilt. The appeals against sentence were also dismissed, with the Court affirming that the sentences imposed were appropriate given the seriousness of the offending and the appellants' criminal histories. The Court emphasized the need for significant deterrence and protection of the community in cases of large-scale drug manufacturing and supply.

Orders