Rewa Kevin John v The Queen
[2004] NZCA 267
•9 November 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/04
THE QUEEN
v
KEVIN JOHN REWA
Hearing:19 October 2004
Coram:McGrath J
Potter J
Rodney Hansen JAppearances: J H M Eaton for Appellant
A Markham for Crown
Judgment:9 November 2004
JUDGMENT OF THE COURT DELIVERED BY POTTER J
Introduction
[1] The appellant was convicted following trial by jury in the Christchurch High Court on 28 April 2004 of one charge of importing a class B (as it then was) controlled drug amphetamine. He appeals against conviction.
Grounds of appeal
[2] The grounds of appeal are:
(i)the verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence (s 385(1)(a) Crimes Act 1961).
(ii)the trial Judge erred in allowing the evidence of the witness Tranter to be adduced at trial and/or misdirected the jury in relation to that evidence resulting in a miscarriage of justice (s 385(1)(c)).
(iii)the trial Judge failed to direct the jury as to the elements of the offence and misdirected the jury as to inferences resulting in a miscarriage of justice (s 385(1)(c)).
Factual background
[3] On 5 July 2000 Customs officers in Auckland intercepted two packages each containing approximately 500gms of amphetamine of 65% purity. Both were sent from Germany by the same person. One was addressed to a “Mr Dieter West” at an address in Ponsonby, Auckland. The other was addressed to a Mr M Jakowetz at Salisbury Court, Unit 1, 139 Salisbury Street in Christchurch.
[4] Police commenced a surveillance operation on 7 July 2000 in respect of the Salisbury Street address. Mr Richard Hone was found to be an occupant at the address as were a number of other persons known to be members or ex-members of the Highway 61 motor cycle gang.
[5] On 11 July 2000 Customs and Police Officers executed a controlled delivery of a package to the address. Mr Hone received the package and signed for it at 1.50 p.m.
[6] At 1.54 p.m. Mr Hone left the address and walked to the Shell Service Station across the road. There he used a public call phone to call cellphone 021 1151278 which was the appellant’s mobile phone number. He made another call at 1.56 p.m. He then left the service station and returned to Unit 1, 139 Salisbury Street.
[7] At 1.57 p.m. an employee at the Shell Service Station received an incoming call from an Auckland telephone number 09 8373062. It was accepted at trial that this call was made by the appellant. The caller asked the service station attendant who had just rung him. The attendant replied that it was a “wee Scots fella” who had just left. The caller replied “Oh OK then” and hung up.
[8] Later that evening, 11 July, the police executed a search warrant at the Salisbury Street address. Present at the property were Mr Hone, Sonny Morehu a member of Highway 61 and Augustine Rangi an ex-member of Highway 61.
[9] The package was found unopened on a shelf in the lounge with the words “not at this address” written on it. Mr Hone’s personal telephone directory was on top of the package and inside that directory was the entry “Kev” and the appellant’s cellphone number 021 1151278. That same number was written on a scrap of paper found in Mr Hone’s pocket.
[10] Mr Hone was charged with importation and after two trials ultimately acquitted. He denied his involvement in the importation and gave an innocent explanation for the phone calls – that he rang to invite the appellant around for tea. These matters were made known to the jury, in terms of a pre-trial ruling of Panckhurst J. Mr Hone could not be located to give evidence at the trial of Mr Rewa.
[11] The Crown case against the appellant depended crucially on the evidence of Mr Corey Tranter. Mr Tranter at the time was a junior patched member of the Highway 61 motor cycle gang, but the evidence was that he left that gang in late 2000. Mr Tranter was under the witness protection scheme when he gave evidence at trial.
[12] Mr Tranter’s evidence was that he met the appellant around April 2000 through his gang connections. Mr Tranter was at the time a user and dealer in methamphetamine and was looking for a supplier. The appellant told him that he was organising an Auckland business associate to send a “couple of kilos” of amphetamine from Germany to “some addresses” in New Zealand. One of the intended addresses was in Christchurch. The appellant explained to Mr Tranter that the recipient would write on the package “not at this address” and leave it “on a shelf or something” for a couple of days so that the package could be disowned in the event of a police raid. The appellant also explained that the recipient of the package would call him on his cellphone. He gave Mr Tranter to understand that the plan was underway.
[13] Mr Tranter said the appellant conveyed the impression that he was “quite financial” and owned a number of properties. Other information that came to Mr Tranter’s knowledge led him to have doubts about Mr Rewa’s credibility and he considered that he was just “big noting”. His evidence was that the contact then ceased. This was after about seven weeks.
[14] Telephone records adduced in evidence disclose that the first telephone contact between Mr Tranter and the appellant was on 1 May 2000, followed by a considerable volume of cellphone traffic between them with the last call from Mr Tranter to the appellant being on 15 June 2000. The last two calls from Mr Rewa to Mr Tranter were on respectively 9 and 28 June 2000. The package was not delivered to the Salisbury Street address until 11 July 2000.
[15] The landlord of the appellant at the relevant time gave evidence about Mr Rewa vacating the flat he was renting in some haste in June 2000 leaving behind much of his property including his passport. He did not contact the landlord again until 25 August 2003. The evidence placed Mr Rewa in Auckland on 11 July when he telephoned the Shell Service Station from his cousin’s address.
[16] Independently of, but contemporaneously with, the above events the Customs/Police were investigating drug dealing activities in Christchurch pursuant to an electronic surveillance operation centred on the dealing activities of one Lianne Gardiner allegedly being conducted from her hairdressing salon. This inquiry was code named Operation Lu. When it was terminated on 22 August 2000 a large number of people including Mr Tranter faced methamphetamine and other drug dealing offences. Mr Tranter was arrested and charged with importing the amphetamine that was delivered to Salisbury Street, although the inquiry about that delivery of amphetamine had been conducted independently of the Operation Lu inquiry.
[17] On 29 August 2000 Mr Tranter agreed to make a statement in relation to the murder of a Black Power member Max Shannon by members of the Highway 61 gang on 11 August 2000. Mr Tranter gave a lengthy video statement to the police implicating both himself and other gang members in the murder. He was subsequently granted an immunity from prosecution by the Solicitor-General in relation to the murder charge on the condition that he gave truthful evidence in relation to that prosecution. He duly gave evidence at trial which resulted in the convictions of three persons named Grant, Bucknall and Nathan on the charge of murder.
[18] Immediately after he gave the statement concerning the murder of Max Shannon, Mr Tranter also made a statement to the police denying any involvement in the importation of the amphetamine delivered to the Salisbury Street address and implicating the appellant Mr Rewa. The police ultimately withdrew the charge of importing amphetamine against Mr Tranter. He pleaded guilty to the lesser charge of conspiracy to supply amphetamine, and to other offences arising out of Operation Lu.
[19] Mr Rewa was charged with importing. No immunity from prosecution was granted to Mr Tranter in relation to the prosecution against Mr Rewa.
Rulings
[20] The following rulings and decisions are relevant to the appeal:
(i)On 22 October 2003 Panckhurst J delivered a pre-trial ruling that the evidence of calls made by Mr Richard Hone to the appellant’s 021 phone number on 11 July 2000 should be admitted to evidence and that accordingly the s 347 application of the appellant Mr Rewa should be dismissed. Panckhurst J also ruled that in the interests of fair trial considerations, the evidence that Mr Hone in a Police interview made no admissions and advanced an innocent explanation for the phone calls (that he wanted to invite the appellant for tea) should be revealed to the jury, albeit technically hearsay.
(ii)On 14 May 2004 Fogarty J, the trial Judge, dismissed a post verdict application under s 347 and also gave his reasons for declining an earlier s 347 application made at the close of the Crown case. Briefly stated, the Judge accepted that the evidence of Mr Tranter, which was crucial to the Crown case, had not been shown to be manifestly discredited or unreliable, that it did not stand alone as there was evidence of the telephone call from Mr Hone to Mr Rewa which was the subject of the ruling by Panckhurst J, and that credibility issues were for the jury.
Jury Verdict Unreasonable/Admissibility of Mr Tranter’s evidence
Appellant’s Submissions
[21] Mr Eaton for the appellant accepted that credibility was a matter for the jury except in rare cases, and that seldom will the Court intervene where there is evidence which, if accepted by the jury, would as a matter of law be sufficient to prove the case or, as in this case, support the verdicts returned. He submitted that here, however, the verdict is unsafe, requiring intervention by the Court.
[22] Mr Eaton emphasised that Mr Tranter’s credibility was all important as the Crown case relied upon his evidence together with the evidence of the phone call by Mr Hone to the appellant’s mobile phone immediately after delivery of the package to 139 Salisbury Street.
[23] He referred to the reasons of the trial Judge Fogarty J for his rulings on the two s 347 applications, particularly at para [19] where Fogarty J stated that he was satisfied that there was indeed a very real danger that false evidence would be given by Tranter, and at para [26] that he was troubled with the quality of Tranter’s evidence and that the judgment he made at the end of the Crown evidence was a “line call”.
[24] Counsel then referred to a number of matters relevant to Mr Tranter’s credibility and reliability as a witness. He noted that Mr Tranter was known to be a long term gang member with a long list of convictions, and associations with the Highway 61 gang which linked him with the drop-off address for the package delivered to Salisbury Street.
[25] Further, that Mr Tranter had been charged with importing, which charge the Police subsequently withdrew. He was arrested on 22 August 2000 and remanded in custody. At that stage he elected to make “no comment” concerning evidence of an intercepted conversation between him and Leanne Gardiner on 7 June 2000 which implicated him in importing the amphetamine. Two weeks after his remand in custody in a further interview with the Police on 5 September 2000 he claimed that he was just “big noting” in his conversation with Leanne Gardiner, and implicated the appellant Rewa as the importer. The Police then reviewed the charge of importing against Mr Tranter, withdrew it, withdrew their opposition to bail, opposed Mr Tranter’s recall to prison (he being on parole when the admitted offending occurred), and placed him on the witness protection scheme.
[26] Further, Mr Tranter was also a crucial witness for the Crown on charges of murder against Grant, Bucknall and Nathan in relation to the death of Max Shannon on 8 August 2000. Having provided evidence that implicated him as an accessory in that murder, Mr Tranter was granted immunity on condition that he gave truthful evidence at the murder trial.
[27] Mr Eaton submitted that this background was very important when considering the credibility and reliability of Mr Tranter as a witness in the Rewa trial.
[28] Counsel addressed in some detail excerpts from the intercepted conversation between Mr Tranter and Leanne Gardiner on 7 June 2000 and the cross-examination he directed to Mr Tranter on these matters, noting that Mr Tranter could not provide adequate explanations of parts of the conversation which indicated he was materially involved in the importing. Mr Eaton submitted that this seriously undermined Mr Tranter’s explanation that he was “just big noting”, and must raise further serious doubts about the credibility and reliability of his evidence.
[29] Further (notwithstanding the Crown contention that it is not a realistic possibility), the evidence provided a basis for the charge of importing still to be brought against Mr Tranter and therefore provided a powerful incentive to him to give evidence that implicated Mr Rewa and exonerated himself from the very serious importing charge.
[30] Mr Eaton pointed out that the possibility Mr Tranter might be an accomplice in the importing was recognised by the trial Judge who gave the jury a warning about the need for caution. The Judge explained that Mr Tranter did not have any formal immunity from being charged with importing, only in respect of the death of Mr Shannon:
… in my view you are entitled to take the same very cautious attitude to his evidence in deciding whether he is telling the truth or not.
[31] Mr Eaton referred to the judgment of this Court in R v Condren [2003] 3 NZLR 702 and to the quotation at para [16] from Taylor v R (1996) 14 CRNZ 334 at 341:
The possibility is well recognised that a person who has some hope of personal advantage from assisting the Police may give untrue evidence or embellish evidence. That is why the practice of making promises of immunity to accomplices has for so long been regarded as proper; such a step is taken in order to remove or minimise the inducement to accomplices to give false evidence exonerating themselves and inculpating the accused.
[32] Mr Eaton stated that in Condren the combined effect of a number of factors, and in particular the lack of immunity from prosecution as an accessory after the fact, had persuaded the Court that the evidence of one of the three witnesses, Mr Stilwell, who had not been granted immunity was inadmissible unless the Solicitor-General granted immunity.
[33] Also relevant, submitted Mr Eaton, was the protection provided to Mr Tranter by the witness protection programme. He needed protection from the Highway 61 gang from which he was trying to extricate himself and there was thus a further incentive for him to be co-operative in giving evidence against Rewa, to ensure his continued participation in the scheme.
[34] Mr Eaton submitted that the combination of the character and criminal history of the accused and the inducements present in this case: aspects of the evidence which could materially implicate him in the importing; the possibility of prosecution as an accessory (recognised by the Court in Condren as of the greatest concern), and the protection under the witness protection programme - should have persuaded the Judge to rule inadmissible the evidence of Mr Tranter. He said the circumstances were materially different from those in the murder case in which Mr Tranter gave evidence. In that case he was granted immunity from prosecution and there were not the same concerns about the quality of Mr Tranter’s evidence.
[35] In summary therefore, the jury could not reasonably have found Mr Tranter to be a credible and reliable witness. Mr Eaton submitted that the verdict of the jury should be set aside on the ground that it was unreasonable and could not be supported having regard to the evidence of Mr Tranter upon which it relied (the first ground of appeal). Secondly, that the trial Judge erred in allowing the evidence of Mr Tranter to be adduced at trial and thereby there has been a miscarriage of justice (the second ground of appeal).
Crown Submissions
[36] Ms Markham submitted that there was a proper evidential foundation for the conviction of Mr Rewa and that a significant burden rested on the defence to establish that the jury could not reasonably believe the evidence adduced.
[37] Counsel pointed out that Mr Tranter was extensively cross-examined at trial by Mr Eaton on all relevant issues and the totality of the evidence was before the jury for them to accept or reject. The matter of Mr Tranter’s credibility was for the jury and they were properly directed as to the caution with which they should treat his evidence.
[38] In the Crown’s submissions the issue of the inducement was really a “red herring” because there was no significant inducement operating at the time Mr Tranter gave evidence in the Rewa trial. The importation charge had been withdrawn following advice from the Crown Solicitor because the prosecution reached the view, that there was insufficient evidence to found the charge. That the Police may have held a different view earlier on, was irrelevant. No deal was done. Mr Tranter entered a guilty plea to the alternative charge of conspiring to supply amphetamine. There were no live charges pending or the reality of live charges arising, when Mr Tranter gave his evidence and he could not improve his position by giving evidence.
[39] Should Mr Tranter unexpectedly have implicated himself in the importation when giving evidence at the appellant’s trial, relaying the importation charge against him would be a matter of some difficulty because Mr Tranter had already served a prison sentence in respect of the alternative conspiracy charge to which he pleaded guilty. In any event, that remote possibility did not in fact provide any inducement for Mr Tranter to give evidence.
[40] In this respect the circumstances of this case differ from those in Condren where there was a live charge pending against Stilwell as accessory after the fact to murder.
[41] Nor was there any evidence to support the submission by the appellant that Mr Tranter was induced to implicate Mr Rewa in the importing to preserve his position on the witness protection scheme.
[42] The position was simply, submitted Ms Markham, that Mr Tranter did not require an immunity. He was not offered any immunity in respect of the importation charge, and nor did he seek one. There was no need to encourage him to give evidence implicating Mr Rewa.
[43] As to the general credibility of Mr Tranter, Ms Markham noted that issues as to general credibility do not in themselves form a basis for appeal. It is only if those issues coupled with an inducement place at risk the truth of his evidence that they become relevant.
[44] She submitted that the basis for the appellant’s contentions as to the unreliability of Mr Tranter’s evidence were based on the hypothetical assumption that he was indeed “Mr Big” who had involved Mr Rewa in the importing of the amphetamine but, she submitted, there was no evidence to support that assumption. The only evidence is the intercepted conversation with Leanne Gardiner on 7 June 2000, and read as a whole, the transcript of that conversation does not indicate that Mr Tranter’s explanation that he was “big noting” to Leanne (a known drug addict and a potential customer for Mr Tranter), was far fetched. He was in fact very vague about detail in that discussion, and it is not inconsistent with his story that he was not an importer.
[45] Ms Markham referred to items of evidence which were confirmatory of Mr Tranter’s story of Rewa’s involvement in the importing: the phone call made from the Shell Service Station by Mr Hone immediately after the delivery of the package; the telephone records of calls between Mr Tranter and Mr Rewa which show a flurry of communication between 1 May 2000 and 28 June 2000 when the communications ceased (as Mr Tranter described); the delivery on 11 July 2000 which was inconsistent with Mr Tranter’s involvement in the importation as he described it; there was no evidence that Mr Tranter knew of the delivery to 139 Salisbury Road on 11 July 2000 – no evidence from the intercepted conversation refers to that arrangement; the appellant was in Auckland on 11 July 2000 when he telephoned the service station in response to Mr Hone’s call, which distanced him from the “drop site” at Salisbury Street (although as counsel for the appellant noted, the Customs officers intercepted two packages, the second destined for an address in Auckland), and tended to undermine Mr Hone’s hearsay explanation, which was before the jury, that he telephoned the appellant to invite him for tea.
[46] The Crown noted that the jury was given a strongly worded warning under s 12C of the Evidence Act 1908 to treat with caution Mr Tranter’s evidence. Ultimately it was for the jury to determine whether they believed Mr Tranter’s evidence on the essential facts. Even if the jury reached the view that Mr Tranter was lying about his own involvement in the importation, it did not follow that the jury must have concluded that he was also lying about the appellant’s involvement. The issue is not whether the jury ought to have believed Mr Tranter but whether as a matter of law, the evidence was such that the jury could not reasonably convict.
Discussion
[47] The Judge posed and determined the question: whether or not Mr Tranter’s testimony had been so discredited that it would be unsafe to leave it to the jury to assess. He determined that it was open to the jury to accept some of Mr Tranter’s evidence and to reject other parts of it; that it was open to the jury to conclude that Mr Tranter had no part to play in the importation or that he was involved with Rewa; that Mr Tranter’s evidence was crucial but it did not stand alone as there was the evidence of the telephone call from Mr Hone to Rewa. Having recognised Mr Tranter’s evidence and that phone call as the “two pillars of the Crown case”, the Judge concluded that Mr Tranter’s evidence had not been shown to be so manifestly discredited or unreliable that it should not be left to the jury.
[48] We are satisfied that in the circumstances of this case there was not an operative and active inducement that gave rise to a real danger that false evidence would be given by Mr Tranter, and that the issue of Mr Tranter’s credibility, crucial in this case, was properly left with the jury, there being uncontested evidence which was consistent with his story such that it was safe to leave the evidence for the decision of the jury.
[49] As to the issue of inducement, the principles are firmly established by R v Condren and R v M (2003) 20 CRNZ 215 and R v Kennedy [2004] NZLR 189. They are summarised in para [23] of the Court of Appeal’s judgment in R v M as follows:
1.An accomplice is competent to give evidence for the prosecution;
2.There is a general practice that an accomplice’s position should be finalised before he gives evidence;
3.Even where the accomplice’s position has been finalised there is still a discretion to exclude;
4.The dominant consideration when receiving evidence from accomplices is whether the inducement under which the witness gave evidence is such as to give rise to a real danger that false evidence will be given;
5.The occasions when accomplice evidence will be directed to be excluded will be rare;
6.When asked to exclude evidence, the trial Judge should ask whether there is in existence an operative inducement on the accomplice; if so, what the power of that inducement is; whether such inducement is likely to give rise to a real danger that false evidence will be given by the accomplice; whether the inducement will thereby cause a real danger of injustice to an accused;
7.Even if an inducement is considered “very powerful” it is still necessary to consider the other factors mentioned and also to give weight to the public interest.
[50] In this case the power of any inducement inherent in the possibility of Mr Tranter being charged with importing had become very slight on any objective analysis. On his evidence he was not an accomplice in the importing at all. His position had been accepted by the prosecution as factually correct and he had been dealt with. The Crown was not offering an inducement for him to give evidence against Rewa by agreeing that he would not be charged with an offence he could have been charged with. He did not need an immunity and he was not offered one. While he still had a motive not to implicate himself in the importing when giving evidence, since he had already been dealt with for what was assessed to be his true role in the offending, the pressure on him was not significant, and certainly could not be categorised as “very powerful”.
[51] From Mr Tranter’s subjective perspective, he did not accept that the possibility of being charged with importing constituted an incentive or inducement. At p.26 of the notes of evidence the following exchange took place between Mr Eaton cross-examining, and Mr Tranter:
Q.You would know enough about the criminal justice system Mr Tranter to appreciate that if you’re doing more serious drug offending when your on parole for your third drug dealing offence you’re going to get a long sentence if you go down for a charge as serious as importing?
A.Possibly yeah.
Q.There would be no doubt about it would there?
A.Well if I was guilty yeah.
Q.What I’m suggesting is it all sets a pretty good incentive for you to do whatever you can to make sure this importation charge gets dropped against you, is that fair?
A.I don’t agree with you there.
Q.And what I’m suggesting is that a person with your background would have no qualms about falsely implicating someone else to save your skin?
A. Well you’re wrong.
[52] Nor do we think there was anything by way of an inducement arising from Mr Tranter being under the witness protection scheme. That protection was extended to him in relation to the murder case in which he gave evidence and there was no suggestion that it would be withdrawn. There was therefore no further or continuing advantage arising from Mr Tranter giving evidence in the Rewa trial.
[53] Here there was no operative inducement on Mr Tranter to give false evidence, and certainly no inducement significantly powerful that it was likely to give rise to a real danger that he would give false evidence and thereby cause a real danger of injustice for the appellant.
[54] As to his general credibility and the quality of his evidence, we consider it is significant, as did the trial Judge, that Mr Tranter’s evidence did not stand on its own. There was the evidence of the all important telephone call from Mr Hone to the appellant immediately following the delivery of the package to Salisbury Street. There was the consistency of the evidence of telephone calls passing between Mr Rewa and Mr Tranter with Mr Tranter’s story that communication between him and Rewa ceased about seven weeks after they met in early May. There is also the factor to which Fogarty J made reference at para [35] of his judgment, that “the plan” as put into effect by Mr Hone telephoning Mr Rewa two minutes after the package arrived at Salisbury Street, was consistent with the plan Mr Tranter said in evidence was told to him by Mr Rewa, and passed on by Mr Tranter to Leanne in the intercepted conversation of 7 June when Mr Tranter had no reason to believe that conversation was being recorded.
[55] This was not a case where the interests of justice required that the issue of the credibility of Mr Tranter and the assessment of his evidence (and therefore the Crown case), should not be left to the jury.
[56] The first and second grounds of appeal therefore fail.
Jury directions
[57] As an alternative argument Mr Eaton submitted that the trial Judge misdirected the jury in relation to Mr Tranter’s evidence by directing the jury at para [18] of his summing up that they could accept part of his evidence (as to the involvement of Rewa in the importing) and reject other parts (e.g. as to his not being involved in the importing).
[58] Mr Eaton submitted that in the unusual factual circumstances pertaining in this case that was not a correct direction, because Mr Tranter’s evidence implicating Rewa and exonerating himself was a single indivisible assertion which could not be segregated out.
[59] Secondly, that the Judge’s summing up was “unorthodox” in that he did not specifically direct the jury as to the elements of the offence of importing a Class B controlled drug amphetamine. Nor did he direct as to the law of parties.
[60] Counsel referred to what he described as the high point in terms of legal directions at paras [7] and [8] of the summing up, that the jury could find the appellant guilty if they were satisfied that he was:
… one of the group organising the importation of this drug. You can import a drug without laying your hands on it. But you must be part of the team of people doing it.
[61] Mr Eaton acknowledged that he did not raise with the Judge at the conclusion of the summing up, as counsel were invited to do, any inadequacy in the summing up. He acknowledged that he had run the defence on the basis of Mr Tranter’s lack of credibility and took the decision not to blunt the force of that defence by requesting further direction on the elements of the offence or on the law as to parties. Nevertheless, he submitted, the Judge had a duty to identify for the jury the essential elements of the charge of importing which a more orthodox approach to the summing up would undoubtedly have produced. He was concerned that in the absence of clear direction the jury could have thought that it was sufficient for Rewa to be involved in the importing by having knowledge about it, rather than there needing to be proof of his active participation.
[62] Ms Markham submitted that the direction to the jury in para [18] of the Judge’s summing up was appropriate.
[63] The Judge said:
But it is possible, as Crown counsel said to you, that he (Tranter) could be telling lies about whether or not he was one of the team importing this drug, but also be telling the truth in saying Rewa was one of the people involved. Then again he could have generally been, as Mr Eaton said, been pinging Mr Rewa for what was really an importation by a whole other group of people, probably Highway 61. And he has every incentive. He was sitting in gaol on the charges on remand; sitting at Paparoa Prison.
Discussion
[64] We agree with the Crown’s submissions that it was unnecessary for the jury to determine whether or not Mr Tranter was involved in the importation. They may have had their suspicions; they may have believed he was. But the issue for them was whether Mr Rewa was importing the drug, and on that issue they were entitled to take into account what Mr Tranter said in evidence about Rewa’s involvement and consider it with all the other evidence to determine the guilt or innocence of Rewa. It was open to the jury to accept Mr Tranter’s evidence implicating Rewa in the importing while rejecting, or remaining undecided about, his denial of any involvement himself. The two possibilities could logically stand together and were not indivisible as Mr Eaton submitted.
[65] The manner in which the Judge dealt with the elements of the crime of importing was, we accept, somewhat unorthodox. His directions could have been more particular, identifying for the assistance of the jury the essential elements that the Crown had to prove. But the Judge said to the jury at para [26] of his summing up:
Both counsel agree that if you believe Tranter, and believe his evidence;
· That Rewa told him very quickly after they met that there was this deal;
· That this importation was coming in;
· It was coming from Germany or Russia, and it was going to be dropped;
· Bits would go to different addresses; and so on
If you believe Tranter’s evidence you will convict Rewa. Both sides agree on that. The critical thing is are you going to believe Tranter?
[66] Given that was the basis upon which the case was put to the jury, the paucity of direction as to the essential elements of the charge and the absence of direction on the law in relation to parties, were not critical. There was ample evidence given by Mr Tranter of Rewa’s involvement in the importing beyond just “talking about it”, so in accordance with the Judge’s direction, if the jury believed the evidence of Mr Tranter as to Rewa’s involvement, then there was evidence of his active involvement in the importing upon which they could properly convict.
[67] In summary, while we consider a more detailed approach to directing the jury as to the essential elements of the charge against the appellant would have been preferable, in the circumstances of the agreed basis upon which the case was put, no miscarriage of justice arose.
[68] The third ground of appeal therefore fails.
Result
[69] The appeal is dismissed
Solicitors:
Crown Law Office, Wellington
0
0
0