R v Zhang

[2025] NZHC 1863

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-004-001080 [2025] NZHC 1863

THE KING

v

WENFU ZHANG TAYZEL TUPOU-TOKA TINI

ROBERT TALATI LIAM QUADE PRASAD

Hearing:                   16 June 2025 – 30 June 2025 Appearances:       K S Li and K H M Nihill for Crown

G J Newell L Qian for Mr Zhang

S Tait and A Maxwell-Scott for Mr Tini

P H Tomlinson and K Hamblin for Mr Talati O Hintze and G Burns for Mr Prasad

Judgment:                9 July 2025

Reissued:                 17 September 2025

JUDGMENT OF MOUNT J

Application by Tayzel Tini to dismiss charge under s 147 of the Criminal Procedure Act 2011

This judgment was delivered by me on 9 July 2025 at 2 pm,

………………………………… Registrar/Deputy Registrar

Solicitors/counsel:

Meredith Connell, Office of the Crown Solicitor, Auckland G J Newell, Auckland

M J Taylor-Cyphers, Auckland S Tait, Auckland

PH H Tomlinson, Auckland O Hintze, Auckland

R v ZHANG & ORS [2025] NZHC 1863 [9 July 2025]

[1]                 Tayzel Tini is charged with possession of methamphetamine for supply. Following the completion of the Crown case, he brought an application for discharge under s 147 of the Criminal Procedure Act 2011.

[2]                 I heard oral submissions on 25 June 2025 and issued in a minute declining the application for discharge under s 147 of the Act, with reasons to follow.

Background

[3]                 The Crown case is broadly as follows. On 14 January 2023, a consignment labelled as maple syrup arrived at the Ports of Auckland from Canada.  There were 18 pallets in total, eight of which are relevant to the charge against Mr Tini. Each pallet had 36 boxes, and each box had four 4 litre maple syrup bottles. Customs officials detected discrepancies in the packaging of the bottles and found that six of the eight pallets relevant to Mr Tini contained approximately 595 kgs of methamphetamine crudely concealed in maple syrup containers.

[4]                 Customs officials removed the methamphetamine but otherwise repacked the containers and boxes as they had been found. They set aside a 10-gram amount of methamphetamine which they placed within one of the pallets for a controlled delivery.

[5]                 The import documents identified the importer as Huada Exchange and Development Ltd. A director of that company, Mr Tang, based in Australia, instructed the Auckland logistics company managing the shipment to send the eight pallets to a man called “Tom” with contact details that Mr Tang supplied. Andy Tuumanga admitted using the alias “Tom” and pleaded guilty to his role in the importation of the methamphetamine earlier this year.

[6]                 On 8 February 2023, in accordance with instructions from Mr Tuumanga, the logistics company arranged delivery of the pallets to a rural property near Helensville.

[7]                 A man called Patrick Chand drove Mr Tini and two other men to the Helensville property that morning and they waited for the truck to arrive. Mr Tini said he was  a friend of Mr  Chand’s  and  that  Mr Chand  had  come around the previous

evening to ask him for help “unloading stuff” the next morning. Mr Tini said he did not know the names of the other two men, whom he just met that morning. He said the men just referred to each other as “cuz”.

[8]                 Police had the property under video and audio surveillance. The video surveillance showed activity outside the shed, but did not show what occurred inside. The audio recording picked up conversation within the shed and around the pallets during the relevant period of approximately 20 minutes between the departure of the delivery driver at 12.41 pm and the arrival of the arresting police officers at approximately 1.02 pm.

[9]                 The transcript of the audio recording attributes statements to four “unknown males” (UKM1, UKM2, UKM3 and UKM4). The Crown and defence agreed that voices would not be attributed to individual defendants. The Crown however said it was possible to identify four distinct voices, which was not challenged.

[10]              On the Crown’s case, the following are among the relevant statements on the audio recording, starting a few seconds after the departure of the delivery driver at 12:41:00:

12:41:04        UKM2: “Crack this shit fucker.”

[Discussion among the four men expressing concern that they might appear in photographs that the delivery driver took of the pallets as proof of delivery.]

12:44:29        UKM1: “Start ripping them open gee.” 12:45:01  UKM3: “Maple syrup… not it.” 12:45:22 UKM4: “It could be any of these aye.”

UKM2: “Oh not all of them have it.”

12:45:58UKM1: “And probably only two of them are the ones that we need?”

UKM3: “Shall we just shake the fucking shit.”

12:47:10        UKM3: “He would not do all of this just for maple syrup.” 12:47:13  UKM3: “So there has to be like at least three pallets or two.

But we just don’t know which one. And where to start.”

12:47:56UKM3: “Cos the bro from jail wouldn’t do all of that too. (Pause) Unless they sent the wrong truck aye. And the actual truck’s gone somewhere else.”

12:48:14UKM3: “Straight up. Some cunt’s probably just ganked the whole truck gee.”

12:49:35UKM2: “And then we get paid like either way from now onwards. So if they fuck out on their behalf…”

UKM3: “How much were you meant to get paid the last one?”

12:49:59UKM2: “The bro didn’t say gee… bro was just telling me that he’s told his bro… he wants us to do another mission like this one …”

12:51:24UKM3: “Can you oh, can just open the box and then shake it.”

12:51:27UKM3: “Don’t open the bottle aye. Cos we already had a look in.”

UKM1: “… he said open everything up.” 12:52:35  UKM3: “No white shit aye.”

12:52:50        UKM3: “Fucking syrup gee.”

12:57:11        UKM3: “Fuck this is rat shit aye… Still getting paid gee.” 12:58:03  UKM3: “Ah dox, this one’s sketchy gee. Look at this one.” 12:58:12  UKM2: “That’s it.”

UKM3: “Gee, this is it.” UKM2: “That is it.”

12:58:14UKM3: “This is it. Yeah. Go get him. I think it’s the second layer gee.”

UKM3: “Oh nah, it’s that box. It’s definitely this look inside and tip the shit out, look at it.”

UKM4: “Go get him bro.” UKM2: “That’s it. Cracked it.” UKM3: “Yeah, that’s it.” UKM2: “We’re on. We’re on.”

UKM3: “Yeah we’re on we’re on.” UKM2: “We’re on cuz.”

12:58:42        UKM2: “Cracked it.”

13:00:35        UKM2: “This one here cuz… Look at this.” 13:00:48  [Sound of shaking]

13:00:50        Multiple: “Oh yah-h.”

UKM3:“Let’s get paid hey.”

13:01:30        UKM1: “So six of the eight all have it.”

[11]              One of the armed police who entered the shed at 1.02 pm said the four men were all within one metre of the pallets towards the front of the shed. Two had their hands on the pallets; the other two were within a metre of the pallets.

[12]              Scene photographs showed the interior of the shed as it was when police entered. There was a large blue tarpaulin spread on the ground, with a collection of tools including crowbars, sledgehammers, screwdrivers, bolt cutters, angle grinders and other equipment. There were more than a dozen cardboard boxes on the tarpaulin in various stages of being unpacked. At least two maple syrup containers could be seen. There was also a set of digital scales on the tarpaulin close to the tools.

[13]              That afternoon, Mr Tini gave an interview to police. He denied knowing anything about the contents of the packages. He said that after the truck driver came “those guys” unloaded the pallets, and when all the pallets were out of the truck they got arrested. He said “nothing really happened, they were just taking the boxes off and then they put it to the side and then youse guys came along. They didn’t really do much at all.” When the interviewing officer asked him whether it crossed his mind at the time that the contents might have been drugs, he said:

Oh yeah definitely after like when they were all sketching out and stuff you know. [Nods head] Definitely. Human reaction, you would think.

[14]              He said that “for sure” he thought about leaving at that stage, but he said the fence was locked, he did not have transport, and he lived at least 40 minutes away. There was no dispute about the isolated rural location or that it was Mr Chand who drove the men to the scene but there was no evidence of a locked fence.

[15]              When the interviewing officer put it to Mr Tini that he was wearing gloves because he was being “forensically aware” and that it was “odd having to wear gloves for unpacking items particularly on a hot day as well”, Mr Tini said “yeah I get where you’re coming from, definitely”, but someone said to put gloves on and “we all… did what everyone else did.”

[16]              The Crown submits Mr Tini’s account is inconsistent with the objective evidence and the jury will be invited to conclude that Mr Tini minimised his role. The Crown submits that contrary to his account, Mr Tini drove the forklift unloading the pallets and fully participated in the opening and unloading.

Legal test

[17]              Section 147(4)(c) of the Act confers the power to dismiss the charge if a properly  directed  jury  could  not  reasonably  convict   Mr   Tini.   As   the  Court of Appeal said in Parris v Attorney-General:1

[10]  … If the evidence is sufficient in law, if accepted, to prove the case,  the judge should leave the case to the jury and not withdraw it on evidentiary grounds.

[18]In R v Flyger, the Court of Appeal said:2

[15] … It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so tenuous as to lead a Judge to the view that the jury could not properly convict and accordingly the interests of justice require an order for discharge.

[19]So far as the elements of Charge 3 are concerned, the question trail reads:

CHARGE 3: TAYZEL TUPOU-TOKA TINI—Possession of

methamphetamine for supply

Are you sure that on or about 8 February 2023 at Auckland:

(a)The shipment delivered to Kiwitahi Rd contained methamphetamine?

If “yes”, go to question (b).

1      Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [10].

2      R v Flyger [2001] 2 NZLR 721 (CA) at [15].

If “no”, find Mr Tini not guilty.

(b)Mr Tini had control of the methamphetamine? (See note 2)

If “yes”, go to question (c).

If “no”, find Mr Tini not guilty.

(c)At the time of being in control of the methamphetamine:

(i)Mr Tini knew the contents of the pallets included a controlled drug? (The Crown does not need to prove he knew which controlled drug it was.)

OR

(ii)Mr Tini was reckless whether the contents of the pallets included a controlled drug? (see note 3)

OR

(iii)Mr Tini was wilfully blind whether the contents of the pallets included a controlled drug? (see note 4)

If “yes” to any of the three alternatives (i), (ii) or (iii), go to question (d).

If “no”, find Mr Tini not guilty.

(d)The quantity of the methamphetamine was 5 grams or more? (See note 5)

If “yes”, find Mr Tini guilty.

If “no”, find Mr Tini not guilty

Notes:

1.Methamphetamine is a Class A controlled drug pursuant to the Misuse of Drugs Act 1975.

2.To have control of a controlled drug the defendant must:

(i)Be aware of where the drug is; and

(ii)Have control of the drug, either through personal or shared custody or by having the ability to direct another who had personal custody; and

(iii)Intend to exercise personal or shared control over the drug.

3."Reckless" means that Mr Tini recognised there was a real possibility that the pallets contained a controlled drug and, having regard to that possibility, his actions were unreasonable. "Unreasonable" actions

are actions that a reasonable and prudent person would not have taken.

4.“Wilful blindness” means that Mr Tini suspected the pallets contained a controlled drug but did not make further inquiries because he wanted to remain ignorant.

5.If a defendant possesses 5 grams or more of methamphetamine, the law presupposes the defendant intends to supply that drug to another or others.

The element of control

[20]              On behalf of Mr Tini, Ms Maxwell-Scott conceded there was sufficient evidence to go to the jury on the element of knowledge required for possession. She focused instead on the element of control, that is question (b) in the question trail.

[21]              As the note to the question trail identifies, the Crown is required to show both control (here on a shared basis) and an intention to exercise shared control over the drug.

[22]              Ms Maxwell-Scott relied on the case of Simon v R, in which the Court of Appeal said:3

[15] Custody may indicate control but custody is not determinative of possession as custody may be innocent. Conversely, a lack of custody does not necessarily mean a lack of control, as control of an item can be exercised by directions to another. Control in this context involves the idea of a person having the power to direct what happens to the object.

[23]              Ms Maxwell-Scott emphasised that physical custody is not sufficient, and that the defendant must also have an  intention  to  exercise  control.  She  cited  the  Court of Appeal’s decision in Mene v R, where the Court approved the following direction from the Trial Judge:4

… to find Mr Mene was in possession of the methamphetamine you must be sure that he either had sole possession of all that methamphetamine or that he had joint possession of all of that methamphetamine with Mr Waterman. For Mr Mene to have had joint possession with Mr Waterman in that way you must be satisfied that if Mr Waterman had the methamphetamine Mr Mene knew Mr Waterman had it and intended himself to exercise control over that methamphetamine together with Mr Waterman.

3      Simon v R [2017] NZCA 277 at [15] (footnotes omitted).

4      Mene v R [2015] NZCA 158 at [14].

[24]              Ms Maxwell-Scott also cited the decision of Moore J in Harding v R, where his Honour said:5

[62] What emerges from these authorities is the principle that although a defendant may be aware of the existence of an item, that is not sufficient in itself. There must also be an associated intention to exercise control over it. Where one person has immediate physical custody and control of the product and another person is charged with joint possession, the Crown must prove clearly that the alleged joint possessor has both knowledge of the other's possession and an intention to exercise custody of or control over the items in question in conjunction with that other.

[25]              Ms Maxwell-Scott accepted that the case law does not require a proprietary interest in the sense of ownership of the item in question. But she submitted that control in this context must mean more than the power to direct the movement of an item from one position to another only a few metres away. She submitted that “the power to direct what happens to the object” as referred to in Simon v R must mean more than merely the ability to physically move the item.

[26]              For the Crown, Ms Li submitted there is sufficient control for the purposes of the Misuse of Drugs Act 1975 if the defendant has the power to control the movement of the item during the unpacking and delivery process, even if the process is interrupted by police and the control is for a relatively brief period. She submitted the concept of control does not require the ability to determine the ultimate destination of the item.

[27]              Ms Maxwell-Scott emphasised that the defence will submit Mr Chand was in charge of the operation at Kiwitahi Road  and  directed the defendants,  including  Mr Tini, what to do with the items in the pallets. Ms Maxwell-Scott submitted that Mr Tini did not have any power to direct what happened with the items—he was simply a hired labourer following instructions.

[28]              In my view, the element of control for the purposes of possession in the Misuse of Drugs Act is satisfied if a defendant intentionally exercises physical power over an item with the ability to unpack it and move it from one step of the delivery

5      Harding v R [2016] NZHC 1855 at [62].

process to the next, even if the period of time is relatively brief—for example if the arrival of police interrupts the process.

[29]              As Ms Maxwell-Scott accepted, it is not necessary to show that the defendant owns the item or has a proprietary interest in it. The Court of Appeal in Simon v R considered the position of the owner of drugs who does not have immediate physical custody, for example because the drugs are temporarily in another person’s custody.6 In that context, the Court of Appeal referred to a person in control “having the power to direct what happens to the object.”7 Understandably, the owner remains in possession of the drugs despite not having physical custody, because they can still direct what happens to the item. But that does not mean that an ownership interest is required or that the defendant must have be able to direct the ultimate destination of the drug.

[30]              Similarly, in my view it does not matter if there is someone directing the defendant how and when to move the drug to the next step in the supply chain. For example, that will typically be the case for drug couriers, whose role it is to transport drugs from one place to another under the direction of someone higher up in the chain.8

[31]              In my view a person who assumes physical custody of an item for the purpose of unpacking it and moving it to the next stage of the delivery process has a sufficient degree of control to fall within the Misuse of Drugs Act definition, assuming of course that is done intentionally. The key requirement is that the defendant intentionally takes on the control of the item in a way that progresses the drug through the supply chain. The defendant’s actions become criminally culpable if they have guilty knowledge that the item is a controlled drug.9

6      Simon v R, above n 3.

7 At [15].

8      See for example R v Metcalfe CA258/00, 27 September 2000; and R v Clarke [2008] NZCA 501.

9      Counsel agreed that guilty knowledge in this context included actual knowledge, recklessness in the Cameron sense, and wilful blindness: see Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [73]–[74] and [77]; and R v Martin [2007] NZCA 386 at [10].

Evidential sufficiency

[32]              The Crown case against Mr Tini relies on the jury drawing an inference from the evidence that he had the necessary degree of control. In this application the question for the Court is whether the jury could reasonably convict Mr Tini from the combination of proven facts that make up the circumstances on which the Crown relies.10

[33]              The Crown case against Mr Tini is that he, together with Mr Chand and the other defendants charged with possession for supply, agreed to take control of the methamphetamine in the pallets, to make sure it was safely unpacked and ready to be moved on to the next stage in the supply chain. The Crown does not allege that Mr Tini was the owner of the methamphetamine, nor that he had the power to determine its ultimate destination. Rather the Crown alleges that Mr Tini knowingly and voluntarily agreed to unpack the methamphetamine so it could move to the next step in the supply chain, albeit that his involvement was brief and interrupted by the arrival of the police.

[34]              The Crown points to the surrounding circumstances as a starting point. The pallets were delivered to an isolated rural location. The men who arrived to unpack the items appear to have avoided using each other’s names and were concerned about being photographed. They used gloves on a hot February day. There was no objectively good reason to be unpacking pallets of maple syrup in an isolated shed, and the equipment taken did not suggest any activity other than unpacking and perhaps weighing the material from the pallets. In the Crown’s submission, these factors all point against any legitimate underlying activity. In those circumstances, the Crown says, the whole point of the men’s presence was to assert a degree of control over the contraband substance in the pallets.

[35]              The physical situation, in the Crown’s submission, points to a material level of control over the methamphetamine located within the pallets. The first attending police officer described four men closely engaged with the pallets. The physical evidence at the scene was consistent with a process of searching for material concealed within the maple syrup containers, rather than a normal unloading process. That

10     See R v Afoa [2019] NZCA 414 at [22].

necessarily involved asserting a degree of physical control over the items, to unseal them, open them, and search for the material concealed within them. Opening the pallets, boxes and containers is, for example, a greater assertion of control than a courier would normally have.

[36]              The Crown relies on the audio recording as reinforcing these conclusions. The Crown says the comments of the men in the shed are consistent with all four men operating in a focused, goal-directed way, asserting control over the maple syrup bottles to locate what was concealed inside them. The Crown says the audio is particularly revealing when it appears the four defendants first located the material concealed inside the maple syrup containers. Among other things, members of the group said “That’s it”, “Gee, this is it”, “It’s definitely this look inside and tip the shit out, look at it”, “That’s it”, “We’re on. We’re on”, “Yeah we’re on we’re on”, “We’re on cuz”, “Cracked it”. These comments are followed by the sound of shaking, laughter, and multiple people saying “Oh yah-h”, followed by “Let’s get paid aye”. The Crown says those comments indicated the men in the shed asserted direct control over the items in the pallets in a shared way so they could move the progress of the methamphetamine to the next stage in the chain and get paid for their role.

[37]              The Crown also relies on Mr Tini’s apparent admission that it “definitely” crossed his mind that the pallets may contain drugs when the men were “all sketching out”. That is primarily directed to his knowledge. But it also arguably supports the inference that Mr Tini intended with others to control the progress of known contraband from its concealed position in the containers to the next stage of the delivery process.

[38]              In contrast, the defence submits there is no evidence that Mr Tini had any degree of control over the methamphetamine. Ms Maxwell-Scott emphasises there is no telecommunication or other evidence to suggest that Mr Tini was the person who organised the receipt of the methamphetamine or its loading. Nor is there evidence that he had a role in what would happen with the drugs afterwards. The defence says that Mr Tini had no say over what was to occur with the methamphetamine and how it was to be dealt with. The defence says that the acts the Crown can prove were all under the direction and instruction of Mr Chand, and do not prove control.

[39]              In my view there is sufficient evidence upon which a properly directed jury could draw the inference that Mr Tini intentionally had a material level of control over the contents of the pallets, including the methamphetamine. The defence is correct that the Crown evidence does not establish Mr Tini had any sort of proprietary interest in the methamphetamine, or that he was one of the organisers with the ability to dictate its ultimate destination. However, there is an available inference that he consciously and deliberately inserted himself into the process by which the methamphetamine was to be located and moved from the shipping pallets onwards towards the next step in the delivery chain, and thereby assumed sufficient control for the purposes of the Misuse of Drugs Act.

[40]              It is open to the defence to submit that Mr Chand directed the work of the men in the shed, perhaps akin to a foreman, although the audio recording does not necessarily show one person calling all the shots. In my view, if Mr Chand or someone else did on some level direct the men’s activities in the shed, that would not necessarily be fatal to the Crown’s case. Even if Mr Tini did not have a leadership role in the operation, there is evidence on which the jury could draw an inference that he voluntarily assumed a material level of control over the methamphetamine in the way described above. The nature of large-scale drug importation and distribution offending commonly involves multiple layers of responsibility and control. It would be wrong, in my view, for any person who voluntarily asserts a level of control in that process to escape liability merely because someone higher up the chain directed them what would happen next with the controlled drug. For example, that will commonly be the case with drug couriers who are directed where to pick up and deliver a controlled drug.

Conclusion

[41]              I am satisfied there is sufficient evidence on which a properly directed jury could reasonably find Mr Tini guilty on Charge 3. These are the reasons I declined Mr Tini’s application under s 147 of the Criminal Procedure Act.

Mount J