The Queen v Collins

[2009] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND

CA119/2009
[2009] NZCA 519

THE QUEEN

v

EDWARD WOODROW COLLINS

Hearing:9 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ

Counsel:W C Pyke for Appellant

M D Downs for Crown

Judgment:4 November 2009 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents

Para No

Alleged conspiracy to manufacture methamphetamine  [1]
Issues on the appeal  [6]

Was there reasonable evidence of a conspiracy between Messrs Collins and Aram so as to justify the admission of conversations between Messrs Aram and Shaida in terms of the co-conspirators’ rule ofevidence?  [13]

A conspiracy?  [20]

Mr Collins’s membership of the conspiracy?  [34]

Were the Judge’s directions on the elements of conspiracy deficient in

failing to include references to the standard of proof?  [36]

Did the Judge fail to comply with s 122 of the Evidence Act?  [43]

Mr Shaida  [45]

Mr Aram  [47]

Did the Judge unfairly direct the jury with respect to Mr Collins’s

statements to the police?  [53]

Did the Judge unfairly summarise the competing cases of Crown and

defence?  [61]

Was the jury’s verdict unreasonable?  [65]

Result[72]

Alleged conspiracy to manufacture methamphetamine

[1]       Following a trial before Harrison J and a jury, Edward Collins, the appellant, was convicted of conspiring with Shahram Aram to manufacture methamphetamine.  The Crown case was that Messrs Collins and Aram planned to import ephedrine from South Korea.  This ephedrine was then to be used to manufacture methamphetamine here in New Zealand.  The plan never came to fruition because of vital intelligence the police received from another of Mr Aram’s associates, one David Shaida. 

[2]       Mr Shaida’s assistance came about in the following way.  On 28 March 2004, Mr Shaida was caught by police at Auckland Airport in possession of 1.9 kg of methamphetamine.  Mr Shaida quickly decided that he would assist the authorities in return for what he hoped would be a reduced sentence for himself.  He very soon divulged that he had been bringing in the methamphetamine at Mr Aram’s request and that he had assisted Mr Aram’s drugs operation by bringing in methamphetamine on earlier occasions.  He agreed to act as a police agent in recording his conversations with Mr Aram.  A number of those conversations contained evidence against Mr Collins and provided support for the Crown contention that Messrs Collins and Aram were planning to manufacture methamphetamine in New Zealand using the ephedrine they had sought to import. 

[3]       After the covert interception scheme came to an end, Messrs Shaida, Aram and Collins were all arrested.  Mr Shaida promptly pleaded guilty to importing methamphetamine and possessing that drug for supply.  Mr Aram pleaded not guilty not only to the charge of conspiring with Mr Collins to manufacture methamphetamine but also to a number of other drug dealing charges.  A jury found him guilty.  He was later sentenced to 15 years’ imprisonment.  His appeal against conviction and sentence to this court was dismissed: R v Aram [2007] NZCA 328.

[4]       Mr Collins was tried separately.  Mr Shaida gave evidence for the Crown at Mr Collins’s trial, but Mr Aram did not.  The Crown, however, relied on what Mr Aram had said to Mr Shaida about Mr Collins, this evidence being admissible, the Crown said, under the co-conspirators’ rule. 

[5]       Mr Collins has now appealed against his conviction on the conspiracy charge. 

Issues on the appeal

[6]       Mr Pyke, for Mr Collins, raised six issues on the appeal.  The first was whether there was reasonable evidence of a conspiracy between Messrs Collins and Aram so as to justify the admission of conversations between Messrs Aram and Shaida in terms of the co-conspirators’ rule of evidence preserved by s 12A of the Evidence Act 2006. 

[7]       The second issue was whether the Judge’s directions on the elements of conspiracy, which were reduced to writing, were deficient and led to a miscarriage of justice because they failed to include references to the standard of proof. 

[8]       Thirdly, Mr Pyke complained that, even if Mr Aram’s statements to Mr Shaida were admissible under the co-conspirators’ rule, the Judge failed to caution in terms of s 122 of the Evidence Act.  Under that section, a judge is required to consider whether to give a warning to the jury in certain circumstances where the judge considers evidence, although admissible, may nevertheless be unreliable. 

[9]       Fourthly, Mr Pyke submitted the Judge had unfairly directed the jury with respect to Mr Collins’s statements to the police.

[10]     Fifthly, Mr Pyke submitted that the Judge had unfairly summarised the competing cases of Crown and defence. 

[11]     Finally, Mr Pyke submitted that the jury’s verdict should be set aside on the ground that it was unreasonable: see the Crimes Act 1961, s 385(1)(a). 

[12]     We shall consider those issues in turn. 

Was there reasonable evidence of a conspiracy between Messrs Collins and Aram so as to justify the admission of conversations between Messrs Aram and Shaida in terms of the co-conspirators’ rule of evidence?

[13]     The law in relation to the operation of the co-conspirators’ rule of evidence, preserved by s 12A of the Evidence Act, is succinctly summarised in the Supreme Court’s decision in R v Qiu [2008] 1 NZLR 1 and this Court’s decision in R v Messenger [2008] NZCA 13. In the latter, this Court said at [11]:

Before the acts or declarations of one alleged conspirator will be admitted as evidence against any accused, three threshold issues have to be determined by the Judge:

(a)that there was a conspiracy or joint enterprise of the type alleged;  and

(b)that the accused was a member of that conspiracy or joint enterprise; and

(c)that the statements were made and/or the acts were done in furtherance of the conspiracy or joint enterprise.

[14]     This Court went on to say, at [12], that so far as matters (a) and (b) are concerned, “it is sufficient for the Crown to show that there was reasonable evidence that there was a conspiracy or joint enterprise and that it involved the accused”.  The phrase “reasonable evidence” connotes evidence “which is of such a nature that the Judge considers it safe to admit the evidence of a co-conspirator”. 

[15] So far as the existence of a conspiracy is concerned, the Court can look at “the statements of all alleged participants, including what they have said about the accused”: at [13]. The Crown is not obliged to prove every detail of the conspiracy or joint enterprise before the acts and statements of co-conspirators become admissible. But the Crown must show “it is of the kind alleged and in general terms what the conspirators, including the accused, had the common intention of achieving”: at [14] and [16].

[16]     So far as the accused’s membership of the conspiracy or joint enterprise is concerned, the Court must be satisfied that there is reasonable independent evidence of such membership. Independent evidence is evidence “external to the statements which had been made in the absence of the accused”: at [18].

[17]     There was no real dispute between Mr Pyke and Mr Downs, for the Crown, as to the applicable law.  Rather, the difference between them was as to whether the evidence in this case relating to the alleged conspiracy and to Mr Collins’s membership of it reached the “reasonable evidence” standard.  In this regard, it is pertinent to note that Mr Collins’s very experienced trial counsel, Mr Newell, did not challenge that the standard had been reached.  He had not submitted that what Mr Aram had said to Mr Shaida was inadmissible. 

[18]     This raises a question as to the circumstances in which an appellate court should consider a challenge to the admissibility of evidence where no challenge was made at trial.  Some appellate counsel appear to consider that there is no impediment to such challenges, but that is not the law.  For relevant authorities, see Stirland v Director of Public Prosecutions [1944] AC 315 at 327‑328 (HL), R v Samuels [1962] NZLR 1036 at 1039 (CA), R v P [1996] 3 NZLR 132 at 135 (CA), and R v Tafiti CA490/97 19 March 1998 at 3.  Mr Downs took no point about this being a challenge to evidence which had not been advanced at trial.  For that reason, we shall consider the challenge, but counsel for the defence and the Crown should not assume that this Court will in future be prepared to entertain novel admissibility challenges without good cause. 

[19]     We shall look first at the evidence as to whether there was a conspiracy of the type alleged and then at the evidence as to whether Mr Collins was a member of the conspiracy. 

A conspiracy?

[20]     The key points of the evidence as to conspiracy were collected in Mr Downs’s written submissions, which we gratefully adopt.  First, the police found in Mr Aram’s car a document which Mr Collins had written (save for the signature, which was Mr Aram’s).  The draft fax read:

We are seeking the following product, ephedrine (HCL). 

We need to know the exact payment procedure.

We require the product within four weeks (28 days).

We have previously purchased product from your company at 17 won (seventeen won) each.

Are you able to supply at a better price?

The product we require is 2 million ephedrine (HCL) plus or equivalent 2,000,000 x 60 mg or better. 

Please contact as soon as possible at the above contact numbers fax/phone/mobile.

Sean Aram

24 March 2004

[21]     Police found both Mr Collins’s and Mr Aram’s fingerprints on that document. 

[22]     Wayne Gatenby, a forensic scientist, testified that ephedrine hydrochloride could be used to manufacture methamphetamine and that the amount sought could be expected to result in 60 to 91 kg of methamphetamine. 

[23] Police found in Mr Aram’s wallet a document from a Korean company called the Jubilee Trade Corporation, dated 24 March 2004. The document was addressed to Mr Aram and appeared to constitute a reply to the letter set out at [20] above. Jubilee asked Mr Aram for details concerning the purchase. It is clear Mr Aram showed that letter to Mr Collins as a number of annotations in Mr Collins’s hand appear on it; those annotations were plainly intended to be the answer to Jubilee’s questions. Further, Jubilee’s letter also bore the fingerprints of both Mr Collins and Mr Aram.

[24]     Police also found a similar document from Jubilee in Mr Aram’s wallet.  In this document, Jubilee advised it could not meet the “target price” of 17 won.  This document too had Mr Aram’s fingerprints on it, as well as those of the appellant. 

[25]     Police found a document in the glove box of Mr Collins’s car headed “Optical Polarity”.  Mr Gatenby said that the term “optical polarity” referred to “different forms of ephedrine”.  The document, which contains scientific symbols and equations, indicated, he said, “some sort of conversion process to methamphetamine”, albeit one that was not a viable recipe.  Accordingly, as Mr Downs submitted, while the document did not describe how methamphetamine could be made from ephedrine, it was nonetheless capable of being interpreted as evidence of an interest on the part of its possessor to do just that. 

[26]     On 27 March 2004, just a few days after the correspondence with Jubilee, police intercepted a conversation between Mr Collins and Mr Aram in which they discussed “that last thing we were talking about”, namely that “bloody salt” and involving “probably four, five of them”.  Mr Pyke accepted this “could be interpreted as a reference to an illicit drug”. 

[27]     The next day, Mr Shaida wore a wire while speaking with Mr Aram.  Mr Aram told Mr Shaida he was in “the process of arranging a plan for Korea” and that he had been in correspondence with them “last week”.  Mr Aram told Mr Shaida this concerned “a head cold tablet”.  Mr Shaida asked Mr Aram if the latter proposed to convert that substance into “something else” in New Zealand.  Mr Aram replied that he didn’t do that, “but the guy who’s ringing me just now would do it”.  The reference by Mr Aram to the person then calling him was a reference to Mr Collins, as the police, who were monitoring Mr Aram’s conversations, then recorded a call between Mr Collins and Mr Aram.  In the course of the same conversation, Mr Aram made a number of other references to Mr Collins in the context of Mr Collins’s interest in methamphetamine.  Notably, Mr Aram told Mr Shaida that “perhaps 60% of my business is because of him”, referring to Mr Collins. 

[28]     Between 29 and 31 March, there were further discussions between Mr Collins and Mr Aram, in the course of which Mr Collins told Mr Aram that he had “some news” and later that he had received a “fax”. 

[29]     It is a fair inference that the fax had come from Korea, as the previous day, during an international telephone call between Mr Aram and an unknown person, Mr Aram had told that person that he would probably need to come to Korea soon, to which the unknown person had replied: “Just send the fax.” 

[30]     On 1 April, police intercepted a conversation between Mr Collins and Mr Aram in which Mr Aram told Mr Collins: “They cannot sign up at that price.”  As Mr Downs submitted, it is a reasonable inference that this conversation referred to Jubilee’s letter in which that company had declined to supply ephedrine at “17 won”. 

[31]     On 3 April, police intercepted a conversation between Mr Collins and Mr Aram in which Mr Aram told Mr Collins that he had sent the fax, and had asked them if they could do it for 40 won instead of 50 won.  He was waiting for a response. 

[32]     Finally, on 6 April 2004 Mr Shaida met with Mr Aram.  Mr Shaida wore a wire on behalf of the police.  Mr Aram discussed with Mr Shaida the importation of product, which would then be “cooked” in Auckland.  The “cook” was to be “the [guy] with the long hair”, the one who “owned a night-club or disco”.  That description fitted Mr Collins.  Having made the product, Mr Aram referred to the fact that they would “sell some” and “keep the rest”.  As they needed money, they would sell a bit more. 

[33]     Mr Pyke submitted that the evidence set out above was “reasonable evidence” of a conspiracy to obtain precursor substances, but was not sufficient to establish a conspiracy to manufacture methamphetamine.  We do not agree.  We consider there was clearly sufficient evidence to meet the “reasonable evidence” test of a conspiracy to manufacture methamphetamine in New Zealand. 

Mr Collins’s membership of the conspiracy?

[34]     Of the preceding evidence, the matters stated at [20]‑[26], [28], [30] and [31] were available as evidence to link Mr Collins to the alleged conspiracy.  Or to put it differently, as Mr Downs submitted, only the evidence in [27], [29] and [32] had to be disregarded at the threshold stage for the purpose of determining whether there was reasonable evidence of Mr Collins’s membership of the alleged conspiracy.  We are satisfied there was reasonable evidence of Mr Collins’s membership of the conspiracy so as to justify the hearsay conversations being adduced at his trial. 

[35]     The first ground of appeal accordingly fails. 

Were the Judge’s directions on the elements of conspiracy deficient in failing to include references to the standard of proof?

[36]     The law relating to criminal conspiracies is fearfully complicated.  The Judge decided he would summarise the appropriate conspiracy directions in written form, which he gave to the jury.  (We shall call this “the conspiracy memorandum”.)  Mr Pyke does not challenge the accuracy of the conspiracy memorandum, but does complain that it did not refer to the standard of proof the Crown had to meet.  In this regard, he said, the conspiracy memorandum failed to comply with what this Court said in R v Wanhalla [2007] 2 NZLR 573 at [51]:

Written material provided to the jury (issues sheets or decision trees) should be expressed in terms which recognise that the onus of proof is on the Crown and the requirement for proof beyond reasonable doubt. 

[37]     We do not accept this submission.  First, the conspiracy memorandum was not an “issues sheet” or “decision tree”.  It was merely a summary of the applicable law.  What Wanhalla was talking about in the passage cited was the sort of document many judges use, listing factual questions which the jury have to answer.  The suggestion being made is that questions in such an issues sheet or question tree should begin “Are you satisfied beyond reasonable doubt that …” or “Are you sure that…”.  This was not such a document.

[38]     Secondly, in any event, the Judge had made it abundantly clear as to what the standard of proof was.  At [5] of his summing-up, the Judge said:

The ultimate question is really quite straightforward; it is whether or not you are satisfied beyond reasonable doubt – that is, you are sure – Mr Collins conspired with Mr Aram in that three week period between 15 March and 7 April 2004 to manufacture methamphetamine. 

[39]     He then, at [15]‑[18], gave the standard explanation of the concept of proof beyond reasonable doubt.  In essence, the explanation followed the suggested formula set out in Wanhalla at [49].

[40] When summing up the Crown case, he referred again to the fact the Crown had to satisfy the jury “beyond reasonable doubt”: at [37].

[41]     And then, the very last thing he said to the jury was this:

[46]     There you have it, Mr Foreman, members of the jury.  You now have the difficult function.  Remember what I said to you earlier about the burden of proof being on the Crown.  Remember that the standard is proof beyond reasonable doubt.  If you have a reasonable doubt then Mr Collins is entitled to the benefit.  However, if you are sure, and you do not have to be sure to a mathematical certainty, then your obligation is to convict. 

[42]     The second ground of appeal fails. 

Did the Judge fail to comply with s 122 of the Evidence Act?

[43]     Section 122(1) provides that if, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to the evidence.  Subsection (2) provides that the Judge must consider whether to give a warning under subs (1) in various circumstances, of which two are said to be relevant here: “hearsay evidence” and “evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant”.  Subsection (3) provides that a party may request the Judge to give a warning under subs (1).  Subsection (4) provides that it is not necessary for a Judge to use a particular form of words in giving the warning. 

[44]     Mr Pyke submitted that the Judge should have given a warning about Mr Shaida’s evidence, on the grounds that Mr Shaida was “a witness who [might have had] a motive to give false evidence that [was] prejudicial to [Mr Collins]”.  He further submitted the Judge should have given a warning concerning Mr Aram’s conversations with Mr Shaida on the basis that this was “hearsay evidence”.  We shall consider each witness in turn. 

Mr Shaida

[45]     We do not consider there was a need for the judge to warn the jury of the need for caution in deciding whether to accept Mr Shaida’s evidence.  Mr Shaida’s evidence essentially fell into two parts.  The first part related to his own drug dealing, in respect of which he had pleaded guilty.  There is no reason to doubt the truthfulness of that confession.  Mr Shaida received a lengthy prison sentence for that offending. 

[46]     The second part was based on his conversations with Mr Aram.  All of these were recorded, so as to what was said there can be no doubt.  Mr Pyke submitted the evidence was potentially unreliable because Mr Shaida “was sent in by police to ask particular questions that could possibly implicate the appellant”.  It is true that the police, after they learned from Mr Aram’s intercepted conversations about Mr Collins’s involvement with Mr Aram, were keen to find out the precise nature of that involvement.  Mr Shaida was of assistance in that regard: by skilful, yet subtle, questioning, he elicited from Mr Aram significant information about Mr Aram’s drug operation and Mr Collins’s role in it.  Mr Shaida at no time, however, planted false information about Mr Collins.  So there was no reason to doubt the reliability of that part of Mr Shaida’s evidence, and accordingly, in our view, no reason for the Judge to give a s 122 warning with respect to Mr Shaida’s evidence.

Mr Aram

[47]     We now turn to consider what Mr Aram said in his taped conversations with Mr Collins.  In our view, the Judge did, at least in effect, give a s 122 warning with respect to Mr Aram’s evidence.  (In this regard, we reiterate that subs (4) provides that no “particular form of words” is required for a s 122 warning.)  At [8] of the conspiracy memorandum, the Judge referred to the Crown’s reliance on Mr Aram’s statements to Mr Shaida in face-to-face and telephone conversations between the two.  He explained that that evidence, “if it is accepted”, could be relevant to the enquiry into whether the parties had done anything for the purpose of carrying out the crime and in that way could constitute evidence of a preceding agreement.  But, the Judge said:

Before you could consider whether Mr Aram’s statement has the effect for which the Crown contends, you must first be satisfied that what he said to Mr Shaida, which was not spoken in Mr Collins’s presence or in Court and was not tested in cross-examination, is believable and reliable. 

[48]     It is important to note that, according to the Judge, the conspiracy memorandum had been “settled with the lawyers”.  The Judge, again apparently with counsel’s agreement, read out the conspiracy memorandum to the jury prior to counsel’s closing addresses.  The Judge explained he was giving the jury this “mini‑direction”, as he termed it, before counsel addressed so that the jury would better “understand the legal context of what [counsel] are saying”.  At no time, either immediately after the mini-direction or later, did Mr Collins’s trial counsel tell the Judge he thought the warning concerning Mr Aram’s hearsay statements insufficient. 

[49] When the Judge came to his proper summing-up, he again repeated what was in the conspiracy memorandum, with some additional comments. He repeated what was contained in [8] of the conspiracy memorandum, as set out at [47] above. Following the summing-up, the Judge asked counsel whether they had any concerns about any aspect of his summing-up. Mr Newell raised a point about inferences, but at no stage suggested the Judge’s s 122 warning was insufficient.

[50]     Mr Pyke challenged whether it amounted to a warning at all.  We acknowledge that the warning was not as full as the Supreme Court suggested in Qiu at [16] and endorsed by this Court in Messenger at [22]. Both Courts emphasised, however, that their suggested warnings applied only “if it is the fact [that] the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence” leads to “shortcomings in the evidence” (emphasis added).  There was in this case plenty of corroborative evidence.  As this Court said in R v Stewart [2008] NZCA 419 at [122], “the greater the support of other evidence, the less the need for [a s 122] warning”. And it is difficult to conceive how Mr Collins’s defence could have been improved had Mr Aram been a witness.

[51]     On the unusual facts of this case, we think that, even if what the Judge said did not amount to a warning, he would have been justified in not giving one.  There was no doubt about what Mr Aram had said: it was all recorded.  One of the principal concerns courts normally have about the reliability of hearsay evidence accordingly did not arise.  Nothing Mr Aram said to Mr Shaida was inconsistent with what he had said to Mr Collins.  There is no real basis for the suggestion Mr Aram might have been lying to Mr Shaida about Mr Collins’s involvement in the enterprise.  Mr Shaida was, after all, a man whom Mr Aram said he trusted like his own eyes.  It is quite clear, particularly from the 6 April 2004 conversation, that Mr Aram had no idea whatever about Mr Shaida’s role as a police plant.  There is no reason to doubt his assertion that what he was planning was, as he said, “confidential”.  He said: “God be my witness, the only person who knows how big this business is … it’s you and the long-haired man.”  (The reference to the “long-haired man” was a reference to Mr Collins.)  This was one conspirator talking candidly to a man whom he trusted completely and believed would join the planned conspiracy to import ephedrine and manufacture methamphetamine. 

[52]     The third ground of appeal fails.  We do not wish to be misunderstood, however.  In most cases involving co-conspirators’ evidence, where the co‑conspirator does not give evidence, a warning of the sort suggested in Qiu and Messenger should be given. 

Did the Judge unfairly direct the jury with respect to Mr Collins’s statements to the police?

[53]     Mr Pyke’s fourth complaint was that the Judge had tended to disparage the statement Mr Collins had given the police.  The Judge said:

It is for you to give what weight you deem appropriate to the answers given by Mr Collins.  Please remember they are not evidence given on oath in a courtroom.  His answers have not been subject to cross-examination at trial.  However, you can take them into account and give them weight.  But please remember that very important qualification.

[54]     Mr Pyke questioned the reference to the “very important qualification”.  He also said the Judge did not remind the jury of the presumption of innocence and that there was no onus on the appellant.  As to that, we see nothing wrong with a judge reminding a jury that out of court statements have not been given on oath and that the answers have not been subject to cross-examination at trial.  Secondly, the Judge did remind the jury that there was no onus on the appellant.  In the preceding paragraph of the summing-up, the Judge repeated what he had said earlier:

Mr Collins was under no obligation to speak to Detective Sergeant Sowter.  He has a statutory right to remain silent.  However, he decided to participate in an interview.

[55]     Just minutes earlier in the summing-up, the Judge had reminded the jury about the onus of proof: at [13]‑[14].  Among the things he said on that topic were the following:

That onus [on the Crown] never shifts from the beginning to the end of the trial.  It means an accused person, such as Mr Collins, does not have to prove his innocence.  I repeat, as I have expressed on two previous occasions, it is the reason why he does not have to give evidence in his own defence at trial and you must not read anything adverse into his election not to give evidence or call witnesses.  You must treat him as innocent until he is proven guilty beyond reasonable doubt.  He enjoys that presumption of innocence.

[56] There is nothing, therefore, in the submissions about what the Judge said at [25].

[57] We now move to Mr Pyke’s next complaint, which concerned something the Judge said at [34]. The Judge was at this point discussing the element of intent and what Mr Collins’s intention in this case was. He referred to some of the evidence on which the Crown relied on this topic, and then added:

In this respect, I repeat, it is appropriate for you to take into account Mr Collins’s explanation to the police.  If you consider it is worth weight, that is a matter for you.

[58]     This is how this appears in the transcript we have of the Judge’s summing-up.  We suspect, however, that it has been inaccurately punctuated.  The passage makes more sense if written as follows:

In this respect, I repeat, it is appropriate for you to take into account Mr Collins’s explanation to the police, if you consider it is worth weight.  That is a matter for you.

[59]     Mr Pyke submitted that the Judge should have reminded the jury of the presumption of innocence and that there was no onus on the appellant.  We do not agree.  As stated above at [54] and [55], the Judge had already made that crystal clear.  Mr Pyke also submitted that the last sentence suggested that the Judge’s view was that Mr Collins’s explanations to the police “may not be worth weight”.  We do not accept that submission.  The Judge was simply making clear that it would be appropriate to take into account Mr Collins’s explanations to the police, but only if the jury considered those explanations were worthy of weight.  Whether they were worthy of weight was, he emphasised, a matter for them. 

[60]     We do not consider the way in which the Judge dealt with Mr Collins’s police statement was unfair. 

Did the Judge unfairly summarise the competing cases of Crown and defence?

[61]     Mr Pyke’s final concern about the summing-up related to a comment the Judge made after he summarised the defence case:

[45]     That is entirely for you.  But it is important to remember that Mr Dixon [the prosecutor] has drawn your attention to passages in those two transcripts which are independently corroborated by the faxes and the optical polarity document.  What you make of those is for you to determine. 

[62]     Mr Pyke submitted that this effectively “gave the last word to the prosecution”.  He said it was unfair “to finally direct the jury in those terms, without reminding them of the appellant’s explanation relating to those documents (particularly as the summary of the defence case prior to this did not include comment on this aspect of the defence)”.  Trial judges are entitled to comment on submissions counsel have made to the jury.  The Judge had been referring to Mr Newell’s submission that Mr Aram was “a boastful man who on the tapes themselves [had embellished] his own importance and influence”.  Mr Newell had said Mr Aram was “a man who has beaten up a story”.  It was not improper of the Judge, after reciting that submission, to point out to the jury that a lot of what Mr Aram had said in the conversations was independently corroborated by documents which were in evidence. 

[63]     We do not consider this comment was unfair.  The Judge was at pains throughout to make it clear that the facts of this matter were entirely for the jury to determine.  He had, of course, given them earlier in the summing-up a standard direction concerning his role and directing them to ignore any view of the facts he might indicate unless, of course, “it happens to coincide with your own conclusion”.  His view of the facts, he had told them, like the lawyers’ views, did “not carry any particular weight with you”. 

[64]     This ground of appeal fails. 

Was the jury’s verdict unreasonable?

[65]     Mr Pyke’s final ground of appeal was that the jury’s verdict was unreasonable.  There was no dispute as to the appropriate test for unreasonableness: see R v Munro [2008] 2 NZLR 87 (CA) and Owen v R [2008] 2 NZLR 37 (SC).

[66]     Mr Pyke submitted that, while the evidence might have been sufficient for a jury to conclude that Mr Collins was involved in some way with assisting Mr Aram to import ephedrine pills, the evidence was thin that the appellant had agreed with Mr Aram to manufacture methamphetamine.  Mr Pyke’s submission continued:

The drug is not identified in the conversations and the only evidence comes from references by Mr Aram to a cook, who it could be inferred was the appellant.  But the appellant was not named.  The appellant is not recorded discussing manufacturing with Mr Aram: if this role were to be played by him, one would have expected to see evidence of this in the conversations between him and Mr Aram, and to see more evidence of this external to the conversations. 

[67]     With respect, this misstates what it was the Crown had to prove.  It was not essential that the Crown prove beyond reasonable doubt that Mr Collins’s role was to be the cook.  Rather, what the jury had to be satisfied of was that there was a plan to import ephedrine and for that ephedrine then to be “cooked” by someone so as to produce methamphetamine.  If that were the agreement, Mr Collins’s role in the conspiracy did not matter.  It may be he was destined to be the cook; it may be he was merely assisting with procuring the ephedrine, an essential first step in the manufacturing process. 

[68]     There was ample evidence that the conspiracy was more than mere importation of ephedrine.  The very large amount of ephedrine to be imported – sufficient for the manufacture of between 61 and 90 kg of methamphetamine – to some extent spoke for itself in terms of what was intended.  Mr Aram clearly intended that there was to be “a cook” and that the manufacturing process “would take two weeks”.  “Once it was made”, he said, they would “sell a bit of it, to pay all expenses”.  The rest would be kept.  Then, he went on:

We would wait for a higher market price, no matter of two months, three months, six months, one year or what.  Whenever we needed money, we can sell a bit of it again. …  This is going to be a long-term business process. 

[69]     The distribution was to be undertaken, Mr Aram told Mr Shaida, by 20 Russian girls in Auckland and, he proposed, by Mr Shaida in the South Island.  It was inherently unlikely Mr Aram was talking about the distribution of ephedrine tablets as opposed to the product to be made from them. 

[70]     Although not essential to the analysis, we also observe that there was plenty of evidence that Mr Collins’s role was to be that of cook.  Mr Aram described “the one with the long hair [who] owned a night-club” (accepted to be a reference to Mr Collins) as the cook.  Further, Mr Collins was found with the optical polarity document.  While it did not contain a genuine recipe for the manufacture of methamphetamine, it was nonetheless capable of generating an inference that its possessor was at least interested in the manufacture of methamphetamine from ephedrine.  Mr Collins did not provide an explanation as to how the document came to be in his car. 

[71]     We are satisfied that the verdict cannot be challenged on the grounds that it was unreasonable. 

Result

[72]     All grounds of appeal having failed, we dismiss the appeal.  We wish to acknowledge the excellent submissions made by Mr Pyke; although they were not successful, they were thoughtful and carefully prepared.  We should also acknowledge Mr Downs’s excellent factual and legal analysis, which on many issues on this appeal we have gratefully adopted. 

Solicitors:
Crown Law Office, Wellington