R v Su
[2016] NZHC 2778
•21 November 2016
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2015-004-8179 [2016] NZHC 2778
THE QUEEN
v
XIANG SU
Hearing: 14 October 2016 Appearances:
B R Northwood for Crown
T M Cooper for DefendantJudgment:
21 November 2016
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 21 November 2016 at 10.45 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Counsel: T M Cooper, Auckland
R v SU [2016] NZHC 2778 [21 November 2016]
Introduction
[1] This judgment determines two interlocutory applications made following the discharge of the jury on the (first) trial of this matter on 7 October 2016. The first is an application by the Crown, opposed by Mr Su, to amend the one charge that Mr Su would face in a subsequent trial. The second is an application by Mr Su to be discharged, on the ground that, as a matter of law, a properly directed jury could not reasonably convict him.1
Background
[2] The Police located 228 grams of methamphetamine in the back of a computer (“computer”) at Mr Su’s house at approximately 5 pm, 16 July 2015. The methamphetamine was packaged in zip lock bags in various weights, these bags being inside other containers, such as a small camera bag and a box used to package a cellphone. The computer itself was in a spare bedroom in which Mr Su was occupying, apparently following disagreements with his wife. The Police also found a set of scales, small zip lock bags and what the Crown alleges is a “tick list” of weights, these items being in a desk in the bedroom.
[3] As a result of this discovery Mr Su was charged with possession of methamphetamine for supply. He went to trial on this charge on 3 October 2016, as well as on a charge that he, with Jiawen Jiang, supplied methamphetamine to Jasmine Grant and Christopher Fry on 18 June 2015 (“supply charge”). I discharged Mr Su on the supply charge for reasons mentioned below.
[4] Mr Su’s evidence at trial was that he had stored the computer for a friend, Yibang Zhang, known as John, when John was required to vacate business premises and that he did not know of the presence of the drugs. Mr Su explained the scales and zip lock bags on the basis that he was a user of methamphetamine but no more than that, and that whatever the “tick list” related to, it did not relate to drugs.
[5] Until late in the piece, the issue at trial was whether Mr Su knew of the presence of the drugs. Late in the trial, counsel for Mr Su, Ms Cooper, submitted that Mr Su
should be discharged on the charge of possession for supply. This submission was made on the ground that the Crown could not prove that Mr Su was “in control” and therefore in possession of the drugs at the time of the search, as he was in custody at the time (on an unrelated matter), and had been since late in the evening on 13 July
2015.
[6] In response the Crown said it wished to amend the charge, which counsel for Mr Su opposed. Ultimately, at the request of counsel, I discharged the jury so that the applications could be argued.
Application to amend charge
[7] The Crown seeks to amend the charge from:2
That Xiang Su, on or about 16 July 2015, at Auckland, had the class A controlled drug methamphetamine in his possession for the purpose of supply to another person or persons
to
That Xiang Su, on or before 16 July 2015, at Auckland, had the class A controlled drug methamphetamine in his possession for the purpose of supply to another person or persons
[8] This amendment is intended to give the Crown leeway, if it does not have it already, to contend that Mr Su was in possession of the drugs before he was taken into custody. Having heard counsel’s submissions, and it is fair to say that Ms Cooper did not press this point particularly at the hearing of the application to discharge, I am satisfied that a person who is in custody might still be in “control” at a given point in time. The issue is a factual one for the jury to determine on the evidence adduced at trial. Matters such as the length of detention and means of communication throughout that detention may be relevant to the issue. Accordingly, I do not accept that custody per se precludes control.
[9] Counsel for Mr Su submits, correctly, that there is no evidence that the drugs were present at his home prior to 16 July 2015. That is correct, at least on the evidence
before me, but how the Crown runs its case on a re-trial remains to be seen. Mr Su is not prejudiced by the amendment and I propose to allow it.3
Application to be discharged
[10] Mr Su submits that there is insufficient evidence on which the jury could hold that the elements of a charge of possession are proved, these being:
(a) knowledge of the presence of the drugs;
(b) knowledge that the drugs are “controlled”;
(c) control of the drugs, whether because the drugs are in the defendant’s custody or because the defendant is able to direct a third party to act on his or her behalf;
(d) an intention to exercise control.
Intercepted communications
[11] As part of his application to be discharged, Mr Su submits that intercepted communications to which he was not a party but which the Crown adduced at his trial, without objection, are hearsay and inadmissible against him.
[12] The Crown’s case is that the communications are admissible pursuant to the common law “co-conspirators” exception to the hearsay rule, preserved by s 12A(1) Evidence Act 2006 (“Act”).4
[13] Section 12A of the Act provides:
12ARules of common law relating to statements of co-conspirators, persons involved in joint criminal enterprises, and certain co- defendants preserved
Nothing in this Act affects the rules of the common law relating to—
(a) the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises; or
3 Section 133.
4 Evidence Act 2006, s 12A.
(b) the admissibility of a defendant's statement against a co- defendant in circumstances where the defendant's statement is accepted by the co-defendant.
[14] The communications in issue were obtained in the course of warrants to intercept communications of John, Mr Jiang and Mr David Vernon. Those before me
– selected as relevant to the Crown case against Mr Su – are between Mr Jiang,
Mr Vernon, Mr Ryan Brown, Ms Jasmine Grant, Mr Christopher Fry and Mr David Stone. Mr Jiang and Mr Vernon were on EM bail at the material time. The Crown case is that they used others as their drivers – Ms Grant and Mr Fry for Mr Vernon and, allegedly, Mr Su for Mr Jiang.
[15] The first set of intercepts comprises communications on 17 and 18 June 2015 and were adduced at trial as relevant to the supply charge. In the course of observation of Mr Vernon’s address, the Police followed Ms Grant to an address in Albany. They observed Mr Su handing her an envelope.
[16] It was not in dispute at trial that Mr Su did meet Ms Grant. Mr Su’s evidence was that John, on behalf of Mr Jiang, asked Mr Su to deliver a car key to an address, where somebody (Ms Grant as it turned out) would meet him.5 I discharged Mr Su on the supply charge because there was insufficient evidence on which the jury could infer the envelope contained methamphetamine. However, the Crown’s point on the present evidential issue is that there was at least a meeting between Mr Su and
Ms Grant.
[17] The second set of communications occurred between the early hours of 14 July
2015 and midday 19 July 2015. The first of these communications is 71 telephone calls from Mr Jiang to Mr Su’s two cellphone numbers up to 8.30 pm, 14 July 2015. The calls were either unanswered or went to voicemail. Then there are telephone conversations and texts between Mr Jiang and Mr Vernon and others over the next few days in which Mr Jiang tells Mr Vernon that he is unable to find his “driver” (alleged to be Mr Su) who “has the goods”, advice which Mr Vernon relays to others.
[18] On termination of the operation, the Police laid more than 160 charges against
Mr Jiang, Mr Vernon, Ms Grant, Mr Fry and others, for supply, possession for supply,
5 Mr Su’s evidence was that he handed Ms Grant a key to a BMW vehicle.
possession and conspiracy to supply, committed between 2 May and 11 August 2015. These defendants pleaded guilty to all or most of the charges laid against them shortly before trial. The pattern that emerges from the charge list is that Mr Jiang, sometimes with another, would supply Mr Vernon who in turn would supply others. To give the flavour of it, Mr Jiang pleaded guilty to 31 charges of supply and two of conspiracy to supply; Mr Vernon to 60 charges of supply, 26 of possession for supply and one of conspiracy to supply; and Ms Grant to 14 charges of supply.
[19] The effect of s 12A of the Act is that the communications will be admissible against Mr Su if:6
(a) there was a conspiracy or joint enterprise of the type alleged by the
Crown;
(b)there is reasonable evidence that Mr Su was a member of that conspiracy or joint enterprise. This matter is to be determined independently of communications to which Mr Su was not a party;
(c) the statements were made in furtherance of the conspiracy or joint enterprise.
[20] As to (a), the Crown submits, and the defence does not dispute, that Mr Jiang,
Mr Vernon, Ms Grant and Mr Fry were involved in a joint criminal enterprise “to sell drugs”.7
[21] The issue is (b) and whether there is reasonable evidence that Mr Su was a member of the conspiracy. The Crown relies on the following as reasonable evidence:
(a) the large quantity of methamphetamine found in the bedroom occupied by Mr Su and his acknowledgement that he put the computer in that
bedroom;
6 R v Messenger [2008] NZCA 13; [2011] 3 NZLR 779 at [11].
7 Supplementary Memorandum for the Crown – Admissibility of Evidence dated 19 October 2016 at [11].
(b)the scales, zip lock bags and tick list, and the fact that they were found in the same room. Mr Su acknowledged these items were his, although he disputed that the documents constituted a “tick list”;
(c) Mr Su’s evidence that, despite being employed full time as a salesman for a flooring company, he often drove Mr Jiang and/or member or members of his family to places or carried out other errands for him; and that Mr Jiang gave him drugs or a “puff” for doing so; and
(d)Mr Su meeting Ms Grant on 18 June 2015 and his evidence that he purchased drugs from Ms Grant twice thereafter.8
[22] Counsel for Mr Su submits that there is no evidence linking the methamphetamine located in the computer to Mr Jiang and Ms Grant. In addition, although the Crown charged both Mr Jiang and Mr Su with the possession charge, the Crown ultimately abandoned it in relation to Mr Jiang.
[23] Considering the evidence in the round, I am satisfied that there is reasonable evidence that Mr Su was a member of the joint enterprise.9
[24] Mr Jiang was a leading participant in the conspiracy alleged by the Crown. As I have said, Mr Su’s evidence was that, in the course of his working day, he would drive Mr Jiang or members of Mr Jiang’s family about and run errands for him in return for drugs or a “puff”. His acting in this way is explicable only on the basis of a close association between the two.
[25] I note that in assessing whether there was reasonable evidence of conspiracy in Kayrouz v R, the Court referred to defendant’s “unconvincing” evidence given at trial.10 Mr Su’s evidence as to why he performed such tasks for Mr Jiang was similarly unconvincing. Taken together with the finding of the methamphetamine, the scales and the snap lock bags, there is reasonable evidence of Mr Su’s membership of the
joint criminal enterprise.
8 Evidence of X Su, Notes of Evidence 113, 128 and 140.
9 Yu v R [2013] NZCA 169 at [23].
10 Kayrouz v R [2014] NZCA 139.
[26] The Crown also submitted that I could take into account the 71 telephone calls to which I have referred above. I am satisfied that there is reasonable evidence without regard to these telephone calls. The position is even stronger if they are taken into account because they show Mr Jiang’s clear wish to communicate with Mr Su.
[27] The third issue is whether the statements in issue were made in furtherance of the conspiracy. I am satisfied that they were, at least up to the point at which it was clear the Police had found the drugs. In any event, there is discussion of this requirement in Messenger and in Kayrouz. Counsel will be able to agree the status of many of the communications but any that remain in dispute can be determined by the trial judge.
[28] I record that I could not have granted the discharge even if I had held the communications to be inadmissible. That is because of the matters referred to in [21](a) and [21](b). Even without the intercepts, there is sufficient evidence on which the jury could find the charge proved.
[29] An alternative submission for Mr Su was that the communications were not admissible because the circumstances in which they were made did not provide reasonable assurance of reliability (see s 18(1)(a) of the Act). The short answer to this point is the opening words of s 12A, that is “Nothing in this Act ...”. Presumably the rationale for the co-conspirators rule is to ensure a degree of reliability, although the weight to be attached to the communications will clearly be a matter for submission and direction by the trial Judge.
Result
[30] I allow the Crown’s application to amend the charge. I dismiss the application by Mr Su for discharge.
[31] If this matter is not already listed in a criminal callover, I list it in the callover at 9 am, 30 November 2016.
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Peters J