Te Huia v The Queen
[2012] NZCA 538
•19 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA494/2012 [2012] NZCA 538 |
| BETWEEN BRIAN EDWARD TE HUIA |
| AND THE QUEEN |
| Hearing: 29 October 2012 |
| Court: Ellen France, Allan and Lang JJ |
| Counsel: C J Tennet for Appellant |
| Judgment: 19 November 2012 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Allan J)
Introduction
Following a jury trial in the Wellington District Court, Mr Te Huia was found guilty on one count of offering to supply methamphetamine. He was acquitted on six other counts alleging identical offences. All of the charges related to alleged offers contained in text messages sent between 23 and 28 October 2010.
The appellant appeals against his conviction on the ground that the guilty verdict on count two was inconsistent with the not guilty verdicts on the six other counts.
Background
There was little direct evidence at the trial. Much of the evidence took the form of text messages, obtained by the police following execution of a search warrant. The text message evidence was ultimately produced at trial by consent. Authorship was not in issue. Much of the oral evidence was formal in character. It included evidence from Detective Sergeant Dombroski, who gave expert testimony about drug dealing, and in particular, about terms commonly used by those engaged in that activity. It is common ground that the case for the Crown depended almost entirely upon the interpretation to be placed upon the text messages, supported by Detective Sergeant Dombroski’s expert evidence.
The law
On an appeal alleging that the jury has delivered inconsistent verdicts which have rendered a conviction unsafe, an appellant needs to show that no reasonable jury, applying its mind properly to the admissible evidence, could have arrived at the different verdicts. The onus is on the appellant to demonstrate the inconsistency.[1]
[1] R v Wong [2009] NZCA 440 at [27].
The proper appellate approach was succinctly outlined by the Supreme Court in Nevin v R:[2]
The principle is clear and well established; the Court will intervene only where there is no rational or logical explanation for different verdicts.
[2] Nevin v R [2008] NZSC 40 at [2].
A more extended discussion is to be found in R v Shipton where this Court said:[3]
[75] The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached (R v Stone [1955] Crim LR 120 per Devlin J). The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe. Only this can warrant the intervention of an appellate court, and generally there ought to be a curial reluctance to interfere with a jury verdict (R v H [2000] 2 NZLR 581 at 589 per Keith J).
[76] A prima facie inconsistency is never enough to set aside a verdict. Once a prima facie inconsistency is established, the Court must inquire whether there is any rational or logical explanation for the inconsistent verdict. Sir John Smith has stated the requisite approach admirably:
“[T]he jury system is workable only if we assume that, in the absence of any evidence to the contrary, the inscrutable jury has behaved rationally. So where verdicts are alleged to be inconsistent, the court must consider whether there is a rational way in which the jury could have arrived at the two verdicts and, if there is, to assume that this was the path which the jury followed … (In a case note to R v JK [1999] Crim LR 740 at 741).
Count two
[3] R v Shipton [2007] 2 NZLR 218 (CA) at [75]–[76].
Following execution of the search warrant, the police obtained text message data passing to and from the appellant’s cell phone. The Crown case was that the text messages related to dealing in methamphetamine. Each group of text messages which founded a particular charge was made to a different telephone number, with one exception. Counts two (on which the appellant was found guilty), and four (on which he was acquitted) were both made to the same number. Count four relied on a single text. Count two relied on a series of text messages exchanged between 11.00 am and 11.09 am on 23 October 2010, although the full exchange between those numbers extended over a period of several hours on that day.
The text message exchange upon which the Crown principally relied in count two reads:
2 and ones now rdy 2 go [from appellant]
…No credit bro and I at mine waiting for car to come bak sent sum txt out if I had coin of my own I would just get it off you still trying ta hurry my rid …e up and cum up c you [from associate]
Sweet bro [from appellant]
Bro wen u cum ova can u bring me any b gs ova [from appellant]
Swt bro [from associate]
Thanks bro [from appellant]
The Crown case was that this exchange, and in particular the reference to “2 and ones now rdy 2 go” from the appellant’s telephone, constituted an offer to supply methamphetamine. The jury’s verdict indicates that it was satisfied beyond reasonable doubt that it did amount to such an offer.
Mr Tennet does not attack this verdict as such. He accepts that there was sufficient evidence to support the guilty verdict. Rather, he argues that the acquittals on the remaining counts sit so awkwardly with the guilty verdict on count two, that the jury must be taken to have behaved irrationally, or, to put it another way, to have engaged in impermissible reasoning.
We therefore turn to a consideration of the remaining counts in order to discern whether there was a rational basis for the jury’s decision to acquit the appellant on those counts, while finding him guilty on count two.
The remaining counts
Count One
The text message upon which the Crown principally relied in respect of count one reads as follows:
Bro looking 4 any 2 dolla or 1 dolar b gs
This text message is couched in somewhat equivocal language. It tends to suggest that the appellant, the acknowledged sender of the message, was looking for drugs rather than offering to sell anything. It suggests that the appellant was seeking to have drugs supplied to him, rather than offering to supply them himself. The jury’s not guilty verdict is readily understandable upon that basis.
Count three
The text message relied upon in respect of count three reads:
Same cuz between me and u I hav heaps of 2oes and 1nes on me and im a needng sales bro
This message does suggest that the appellant was in possession of drugs which he wished to sell, but the message itself does not amount to an outright offer. We accept Ms Bicknell’s submission that, when read in context, it is capable of being construed as nothing more than a statement made in the course of a chat between dealers as to the state of the market.
Count four
The message relied upon in respect of count four reads as follows:
G 8 2$ big big ts al 4 nw here do ths then we do yrs.
Again, this message is somewhat equivocal. Indeed, it may be possible to draw more than one meaning from it, especially given the abbreviations. Moreover, the message relates to the same transaction as that in count two, upon which the appellant was found guilty. We are told that at trial, counsel for the appellant had expressly asked the jury not to find the appellant guilty on count four if they found him guilty on count two, because the two counts dealt essentially with the same transaction. Although Judge Tuohy directed the jury that they were to consider each count individually, there is nevertheless a readily understandable reason why the jury might find the appellant guilty on count two but acquit him on count four. The text message evidence supporting count four included a reference to “2 $”. There was no such reference in the text messages relating to count two. The jury may very well have concluded that this reference was indicative of a dealing in cannabis, rather than methamphetamine, for the reasons explained below in our discussion of counts five, six and seven.[4]
Counts five, six and seven
[4] See [20] below.
Counts five, six and seven turned on text messages sent by the appellant which read respectively:
Hey got some 1 $ bgs nw
Hey got sme 1 $ bgs nw
Bro got some nice 1 dlla bags that u
At trial it was accepted for the appellant that each of these messages each amounted to an offer to supply drugs. But the case for the appellant was that the drug discussed in the messages relating to counts five, six and seven, was cannabis and not methamphetamine.
Although Detective Sergeant Dombroski gave expert evidence for the Crown to the effect that the messages did relate to methamphetamine, he was cross-examined by Mr Tennet, who put to the witness views expressed by another expert police witness in another case to the effect that the expression “1 $ bag”, or equivalent terms, denoted cannabis rather than methamphetamine. That was the appellant’s defence to counts five, six and seven. There was thus a rational explanation for the jury’s not guilty verdicts on those counts, namely that the detective’s evidence had persuaded them that there was at least a reasonable doubt as to whether the offers related to methamphetamine. It is evident that the jury paid significant attention to the defence contention that counts five, six and seven related to cannabis and not methamphetamine. While deliberating, they asked the following question:
When was the statement made by [the other expert police officer] regarding dollar bags being used with cannabis?”
As might be expected, the Judge told the jury that there was no evidence of the date upon which that police officer’s opinion had been expressed. But for present purposes, the significance of the question is that it was asked at all. It shows that the jury was giving careful consideration to the defence contention that counts five, six and seven concerned cannabis and not methamphetamine.
Conclusion
For the foregoing reasons we are satisfied that there was a rational, and indeed readily understandable, basis for the jury’s decision to find the appellant guilty on count two, but not guilty on the remaining counts. In our view, the appellant has not discharged the onus resting upon him to demonstrate that the only explanation for the verdict pattern is that the jury was confused, or adopted the wrong approach.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent