Ramsey v The Queen
[2013] NZCA 277
•3 July 2013 at 11:00am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA550/2012 [2013] NZCA 277 |
| BETWEEN | ALBERT MARK RAMSEY |
| AND | THE QUEEN |
| Hearing: | 13 June 2013 |
Court: | Randerson, Courtney and Dobson JJ |
Counsel: | M Ryan for Appellant |
Judgment: | 3 July 2013 at 11:00am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant Mr Ramsey was found guilty after jury trial before Judge Adeane in the District Court on 27 June 2012 of five counts of possession of cannabis for sale. The trial Judge sentenced Mr Ramsey on 17 August 2012 to three years imprisonment.[1]
[1]R v Ramsey DC Napier CRI-2010-041-2782, 17 August 2012.
The police executed a search warrant at Mr Ramsey’s rural property in Hawkes Bay on 2 September 2010. Mr Ramsey was observed throwing a 200 litre plastic container over a deer fence and into a gully. A second container was located near the first one. They contained two and a half kilograms and one and a half kilograms of cannabis head respectively. A further container of half a kilogram of cannabis head was located after a police dog tracked from Mr Ramsey’s property across the road into a forestry plantation. A fourth container with half a kilogram of cannabis head was found in a plastic bag on the fence-line of Mr Ramsey’s farm. Finally, a further plastic container containing half a kilogram of cannabis was found on Mr Ramsey’s property after another search on 29 September 2010.
In all, 4.6 kilograms of good quality, unseeded cannabis head was located along with a further .6 of a kilogram of seeded head and some mixed cannabis of no particular value or significance. The police conservatively placed the value of this product at $25,000 on the wholesale market. Other cannabis plant was found as a result of the searches but no charges were laid in relation to that material.
Count 1 related to the container Mr Ramsey was seen throwing into the gully. He admitted possession of the cannabis in that container but denied that he had it for the purpose of sale. In evidence, he said he had intended to destroy the cannabis or to give it to the police. Counts 2 to 5 related to the other quantities of cannabis found on Mr Ramsey’s property and on the forestry plantation. His defence in respect of those counts was that he knew nothing about the cannabis and did not therefore possess it. Alternatively, even if he was found to possess the cannabis, it was not for the purpose of sale. It was pointed out on his behalf that none of the usual indicia for sale were found such as tinfoil, zip lock plastic bags for packaging into smaller quantities, tick lists, or scales.
Mr Ramsey appeals against his conviction on the grounds that a miscarriage of justice arose for three reasons:
(a)The search warrant executed by the police on 2 September 2010 was improperly issued and the resulting evidence was not admissible;
(b)The Judge intervened excessively during the trial; and
(c)The Judge misdirected the jury.
Mr Ramsey also appeals against his sentence on the ground that it was manifestly excessive.
The conviction appeal
(a)The search warrant
The application for the search warrant was largely based on information supplied by informants. On the basis of a redacted version of the affidavit sworn in support of the application for the search warrant, Mr Ryan submitted for Mr Ramsey that there was insufficient material to satisfy the judicial officer that the informant information was reliable. He further submitted that the supporting affidavit contained a misleading or false statement in that Mr Ramsey was said to have drug convictions when, in fact, he had none.
We have had the opportunity to view the un-redacted form of the affidavit supporting the search warrant application. It was sworn by the Detective Sergeant in charge of the Napier Organised Crime Squad. He deposed that he was responsible for the collation of intelligence as well as supervising the detection and prosecution of offenders involved in organised criminal activity in drug related offending in the Napier area. It is clear from the affidavit that an anonymous person supplied information to a Napier detective in July 2010 implicating Mr Ramsey in large scale cannabis dealing. Just over two weeks later, the same officer spoke to a registered police informant who gave the police detailed information about Mr Ramsey’s involvement with others in cannabis dealing. This included advice that Mr Ramsey stored the cannabis on his property and at other locations. Further detailed information to similar effect was provided by the same informant to the police officer on 24 August 2010.
All of this material was detailed in the Detective Sergeant’s application. The source of the information, the fact that the informant was registered and was considered by the police to be reliable was set out in the affidavit. Mr Ramsey’s address was given. The affidavit continued:
[Mr Ramsey] is well known to Napier Police. He has numerous previous convictions including convictions for dishonesty, violence, drug and firearm related offences.
The affidavit went on to describe the use of mobile phones as a common practice among persons involved in drug dealing. The Detective Sergeant stated that he had reasonable grounds to believe the following items would be located at Mr Ramsey’s address:
·Mobile telephones, SIM cards and memory cards containing data relating to drug dealing activity.
·Firearms.
·Cannabis, cannabis material and any documentation, instruments or other material relating to the cultivation of cannabis.
On 26 May 2011, Judge Adeane gave a pre-trial ruling on the sufficiency of the information relied upon to support the two warrants authorising the search of Mr Ramsey’s property. He noted that the information received by the police came from two separate sources, all to the same effect. He stated:
The contents are highly detailed, obviously cogent and, in my view, give ample support both to the first warrant which [was] issued and thereafter a second to search for video records in the possession of the accused.
He concluded that the warrants were properly issued.
At the commencement of Mr Ramsey’s trial, Judge Adeane was asked to review his earlier ruling about the propriety of the search warrants. First, he accepted that the affidavit had wrongly stated that Mr Ramsey had previous drug convictions. Second, it was said that the affidavit had wrongly omitted to state that a co-habitant of Mr Ramsey’s home was not referred to in the affidavit. This person was said to have had previous drug convictions.
The Judge upheld his earlier ruling. He considered that the error made in relation to Mr Ramsey’s prior convictions would not have played a significant part in the decision made by the judicial officer issuing the warrant, particularly in the light of the substantial body of detailed and cogent information supporting the grant of the warrant application. Further, the Judge did not consider that the presence of another occupant at the dwelling house who might have had a propensity for drug offending was of any particular significance in relation to the issue of the warrant (while noting that it might be a matter of interest to the defence during the trial).
We are satisfied that the affidavit supporting the search warrant application provided ample information to support the grant of the warrant. We agree with Judge Adeane that it was cogent, detailed and apparently reliable. We also agree with the Judge that the error made in relation to Mr Ramsey’s drug conviction was not sufficiently material to warrant the conclusion that the error in that respect misled the issuing judicial officer or improperly influenced the grant of the application. It was plainly a very minor aspect amongst a substantial body of detailed and compelling evidence to support the issue of the warrant. No point is taken on appeal with regard to the failure to refer to the co-habitant at Mr Ramsey’s property.
We conclude that the search warrant was properly issued and that the evidence resulting was properly admissible at Mr Ramsey’s trial.
(b) Excessive intervention during the trial
Mr Ryan submitted that the Judge had intervened excessively by questioning witnesses during Mr Ramsey’s trial. Relying on this Court’s decision in R v Tahere,[2] he submitted the extent of the interventions gave rise to a risk of a miscarriage of justice.
[2]R v Tahere [2013] NZCA 86.
Mr Ryan nevertheless accepted that all but one of the interventions were for the purpose of clarifying evidence. Interventions of that kind are entirely permissible for the purpose of ensuring that the jury understands the evidence.[3] We are not persuaded that the nature of these interventions was such as to cause a reasonable observer to think that the Court was partial as between the parties or that the interventions made the trial unfair.
[3]R v Tahere at [29].
The only potential exception related to the Judge’s questioning of the police officer who had seen Mr Ramsey throwing a drum over the deer fence. The Judge questioned the police officer in some detail about the officer’s observations of the person he saw throwing the container over the fence and later carrying it further into the bush after it had rolled down the gully. The record of these questions occupies a full page of the transcript. The questions related to the length of time between the two observations made by the officer, how far away the officer was from the man he was observing on each occasion and a comparison of the person he had seen in each of the two observations. The transcript records that counsel did not have any questions arising from the Judge’s examination of the witness.
Some of the questions the Judge asked were matters of clarification but his questions regarding the similarities (or otherwise) in appearance of the man under observation arguably went beyond mere matters of clarification. However, as Mr Ryan accepted, the Judge’s questioning on these topics was not material since Mr Ramsey admitted in evidence that he was the person who threw the drum over the fence.
While it is important that a Judge does not, even inadvertently, convey an impression of partiality in the manner and number of questions asked during a trial, we are not persuaded that the interventions by the Judge in the present case crossed the line. They were not likely to give any impression to the jury of partiality or to render Mr Ramsey’s trial unfair.
(c) The Judge’s direction to the jury
It is common ground that the cannabis that formed the basis for each charge exceeded, by a considerable margin, the 28 grams necessary to trigger the presumption of supply under s 6(6) of the Misuse of Drugs Act 1975. In that case, the onus shifted to Mr Ramsey to demonstrate on the balance of probabilities that he did not possess the cannabis for the purpose of supply.
Mr Ramsey complained about the following passage in the Judge’s summing-up to the jury:
Mr Ryan further submits that this cannabis was not packaged into known saleable quantities, it was not an ounce, it was not a pound, that there was in one case a big chunk of cannabis which he referred to by the photographs. Further he submits to you that there were no scales to measure saleable amounts and therefore he invites you to reason that this cannabis was not for the purpose of sale. That submission, however, members of the jury involves a misconception. We get back to the presumption that the law creates. Once you are in possession of more than 28 grams, the law presumes your purpose to be the purpose of sale unless you prove otherwise and it does not matter how its packaged or whether you have got scales to weigh it, simply that it is more than 28 grams. You know that in this case, taken collectively, the total amount of cannabis vastly exceeds 28 grams and the amount in each particular count in the indictment, each charge well and truly exceeds 28 grams. The fact that it was not found packaged for sale really does not establish much at all.
Mr Ryan’s main point as finally articulated was that the Judge had effectively taken away Mr Ramsey’s defence to counts 2 to 5. As earlier noted, this was that, if he did have possession of the cannabis (contrary to his primary defence) then the lack of the usual indicia of sale demonstrated that he did not have possession for the purposes of sale. It was submitted that the Judge was wrong to effectively direct the jury that they should ignore or give little weight to the circumstantial evidence Mr Ramsey relied upon in this respect. Mr Ryan referred particularly to the Judge’s use of the word “misconception” and his observation in the last sentence of the quoted passage that the fact that the cannabis was not packaged for sale really did not establish much at all.
We agree with Mr Ryan that this passage in the Judge’s summing-up was somewhat unfortunately expressed. We think it is likely that, in referring to Mr Ryan’s submission as involving a misconception, the Judge merely intended to remind the jury of the statutory presumption about which he had earlier correctly directed the jury. However, this passage in the summing-up, taken as a whole, could have been viewed by the jury as essentially dismissing Mr Ryan’s submission relating to circumstantial evidence about the purpose for supply or at least as an invitation to the jury to give little weight to that evidence.
Nevertheless, we do not consider the Judge’s directions on this point gave rise to a real risk of a miscarriage of justice. The Crown called Detective Sergeant Greville to give expert evidence based on his extensive experience in drug investigations. He described the various levels of cannabis dealers. Those selling in bulk quantities at wholesale level; the mid-level dealers selling in ounces or half ounces; and the low‑end dealers selling in foils or tinnies. Those selling in bulk would usually sell in pounds or maybe half pounds to ounce dealers. The witness said that tick lists were normally associated with the tinfoil sellers and, in his experience, such lists were not used by the pound dealers. In cross-examination he acknowledged that the cannabis found had not been broken down into pound lots or smaller amounts; that pound dealers would need scales to package the cannabis; that no scales had been found on the search of Mr Ramsey’s property; and that no cash had been found.
The Crown case was that Mr Ramsey was dealing in cannabis at a wholesale level. On the evidence, the jury were entitled to accept that tinfoil for packaging associated with mid to low-level dealing would not have been expected and that the use of tick lists would not normally be associated with wholesale cannabis dealing. This limited the potentially relevant sales indicia to the packaging of cannabis into pound lots for which a wholesale dealer might be expected to use scales.
The probative value of circumstantial evidence of this nature was weak. Packaging into smaller lots might well have been expected to have occurred at some point. The absence of packaging at the time of the search merely reflected that no packaging had occurred at that stage. It did not rule out the prospect of packaging before sale to mid-level dealers. The fact that no scales were located did not significantly advance the defence case. There could have been a number of explanations for that including that the police search was not sufficiently detailed or thorough to locate them or that scales were located elsewhere or that the packaging was to take place at another location.
The circumstantial evidence relied upon by Mr Ramsey had little prospect of success given the statutory presumption and the overwhelming inference from the sheer quantity of cannabis located that it must have been intended for supply. Significantly, Mr Ramsey specifically denied that he was a cannabis user or offered any other explanation for the cannabis located. He could not credibly have done so in respect of counts 2 to 5 since his evidence was that he knew nothing about it. His only explanation was that the cannabis must have belonged to someone else and that it had been hidden on his property without his knowledge.
That was consistent with his explanation for the cannabis he admitted possessing and which was the subject of count 1. He gave evidence that about a week before the police executed the search warrant on 2 September, he had seen some forestry workers across the road from his property. Upon investigation he found that they had stored two drums of cannabis. He thought he had better get rid of them. He and another man carried the drums across the road and had a good search of the property. When the police arrived he panicked and threw the drums over the fence. He said he had intended to tell the police about the cannabis he had found and to tell them to destroy it.
Mr Ryan referred us to the decision of this Court in R v Rewha in which it was said that circumstantial evidence of a similar kind to that relied upon in the present case should not have been effectively excluded from the jury’s consideration.[4] In that case, the Court concluded nevertheless that the appellant’s possession of 30.9 grams of cannabis in the form of tinnies led to a very strong presumption that at least part of the cannabis in his possession was for the purpose of supply rather than personal use. The Court added that the absence of usual or customary indicia of dealing, although relevant and entitled to be put to the jury, carried much less weight than the direct evidence of the state of the packaging and the number and location of tinnies in the appellant’s possession at the relevant time. The Court concluded that no miscarriage of justice had arisen in the circumstances.
[4]R v Rewha CA252/00, 28 September 2000.
We find ourselves in a similar position in the present case. The large quantity of cannabis involved, the presumption of supply and the absence of any alternative explanation of purpose from Mr Ramsey combined to present a strong Crown case. The direction to the jury referring to the weight to be placed on the absence of sales indicia, although not felicitously worded, could not have led to a miscarriage of justice in the circumstances.
The appeal against conviction is dismissed accordingly.
The sentence appeal
In sentencing Mr Ramsey, the Judge determined that his activities fell in the middle of category 2 as elaborated in R v Terewi.[5]
[5]R v Terewi [1999] 3 NZLR 62 (CA).
The Judge noted that Mr Ramsey was 51 years of age; he was a helicopter contractor by occupation; and he was a man of some business acumen who was well thought of in some circles. He had no previous drug convictions or other previous convictions of relevance for sentencing purposes. The Judge observed that personal circumstances carry little weight particularly where commercial motives were clearly involved. There was no material suggesting that remorse could be taken into account.
The Judge referred to the commercial elements of the offending in these terms:
[7] The known facts here call for no conjecture about where this matter sits in the tariff case. The quantity of cannabis found and its quality lead to a clear inference that Mr Ramsey is a commercial bulk dealer in cannabis. The absence of transaction evidence, in my view, takes matters no further at all. None would be expected in this area of the cannabis market where large amounts of cannabis are moved to people down the chain and relatively few transactions might be involved, even though large amounts of money were involved.
A submission that home detention could be appropriate was rejected.
In advancing the appeal against sentence, Mr Ryan submitted that the tariff case of Terewi ought to be reconsidered since it was decided some 14 years ago when $25,000 would have been regarded as a more formidable sum of money than it is these days. A similar submission was made in the District Court. The Judge accepted that values had changed but was not persuaded that any lower sentence was justified given the commercial element.
The day might come when Terewi should be re-examined but it is certainly not appropriate for a divisional court to do so and, in any event, a review of a tariff case would require analysis of a wide range of material not presently available.
It is enough to observe that the quantities of cannabis involved in the present case were substantial. The jury’s verdict that Mr Ramsey was guilty of possessing cannabis for the purpose of supply precludes a submission that there was no commercial element involved. Plainly, the assessment of the cannabis as having a wholesale value of $25,000 was conservatively based. It is not in dispute that the retail value of the cannabis would have been substantially higher. We do not have sufficient material to determine the retail value but it is not necessary for us to do so.
Nor is it necessary for us to determine whether Mr Ramsey’s helicopter was used for the purpose of transporting quantities of cannabis from remote locations to his property (although there was evidence suggesting that this may well have been the case).
This was clearly a commercial dealing on at least a moderate scale and we are satisfied the Judge was correct to assess Mr Ramsey’s culpability in the middle of the two to four year range of offending in terms of category 2 of Terewi. There were no mitigating circumstances relating to the offending or to Mr Ramsey personally which would have justified any reduction from the starting point of three years imprisonment. As the Judge said, deterrence had to be the predominant factor in Mr Ramsey’s sentence.
Result
For these reasons, the appeal against conviction and sentence is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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