The Queen v Dixon

[2008] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND

CA397/07
[2008] NZCA 52

THE QUEEN

v

WAYNE STUART DIXON

Hearing:11 February 2008

Court:Ellen France, Williams and Heath JJ

Counsel:C J Tennet for Appellant

D G Johnstone for Crown

Judgment:11 March 2008 at 11.30 am

JUDGMENT OF THE COURT

An extension of time to file the appeal is granted but the appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No

Introduction  [1]
Issues on appeal  [4]
Background  [8]
Unreasonable verdicts  [14]
         Count 1 – importation of ecstasy on 26 June 2005  [16]
         Count 4 – conspiracy to supply methamphetamine  [23]
         Count 5 – importation of ecstasy on 24 July 2005  [34]
         Count 6 – possession of ecstasy for supply  [41]
Directions to the jury   [43]

Expert evidence  [44]
Character evidence  [55]
Conflation of counts 5 and 6  [60]
Failure to put defence case  [61]

Sentence appeal  [72]
Result  [82]

Introduction

[1]       After a trial by jury in the High Court, the appellant was convicted of a number of drug related offences, namely:

(a)Importing a class B controlled drug, MDMA (ecstasy) on 26 June 2005 (count 1);

(b)Conspiracy to supply ecstasy (count 2);

(c)Conspiracy to supply a class A controlled drug, methamphetamine (count 4);

(d)Importing ecstasy on 24 July 2005 (count 5); and

(e)Possession of ecstasy for supply (count 6).

[2]       The appellant was sentenced on 22 February 2007 by the trial Judge, Stevens J, to an effective term of six years imprisonment:  HC AK CRI 2005‑004‑14921.

[3]       The appellant appeals against his conviction and sentence.  As the notice of appeal was filed out of time, he also seeks an extension of time for filing the appeal.  As to the latter, there is an explanation for the late filing and there is no opposition to an extension of time.  In the circumstances, it is appropriate to grant an extension of time for filing the appeal.

Issues on appeal

[4]       There are two broad issues on the conviction appeal.  The first issue is whether the verdicts in respect of counts 1, 4, 5 and 6 are unsafe in that those verdicts are unreasonable or cannot be supported having regard to the evidence (s 385(1)(a) of the Crimes Act 1961).  In this context, the appellant raises issues about the sufficiency of the evidence on these charges.

[5]       The second issue is whether there were misdirections made by the trial Judge in summing up to the jury particularly in relation to expert and character evidence, as to the elements of offences and in terms of how the Judge put the defence case.  The latter is said to have led to a lack of balance in the summing-up.

[6]       A further ground related to the timing of the retirement and length of deliberations of the jury was abandoned at the hearing by the appellant.

[7]       The sentence appeal is brought on the basis that the sentence is manifestly excessive because the starting point adopted was too high and on the grounds of parity with the other co-offenders.

Background

[8] The offending came to light as a consequence of a police operation, Operation Puma, conducted in 2005. As part of the operation over the period from 24 June 2005 to 27 July 2005 the police intercepted and recorded various telephone calls and text messages between the appellant and his co-accused including Allen Harriman. (Judgment on an appeal by Mr Harriman is also being delivered today: [2008] NZCA 53).

[9]       Counts 1 and 2 related to the importation of and conspiracy to supply ecstasy.  The Crown case was that Mr Harriman travelled overseas to Europe and returned to New Zealand on 26 June 2005 with some 1,200 tablets of ecstasy.  The case in relation to Mr Harriman on these two counts was largely circumstantial.  A search of Mr Harriman’s luggage by Customs on his arrival in New Zealand had not revealed any drugs.  The Crown alleged that the appellant was the co-offender in the importation, supporting Mr Harriman through encouragement and involvement prior to the importation.  It was said that on his return to New Zealand with the ecstasy, Mr Harriman then conspired with the appellant and some of the other co-accused to supply ecstasy (count 2).

[10]     The appellant’s defence was, in essence, that there was no importation and that any discussion between the appellant and Mr Harriman related to party pills and other herbal products.

[11]     Count 4 related to the conspiracy to supply methamphetamine which the Crown alleged was between the appellant and the co-accused, James Brown.  The Crown said that, beginning on 5 July 2005, Mr Brown arranged with the appellant to acquire methamphetamine for other people.  The thrust of the appellant’s defence was that what was being discussed was not methamphetamine.

[12]     Counts 5 and 6 related to an importation of ecstasy in July 2005. Mr Harriman entered New Zealand on 24 July 2005 and was found on arrival at the airport to have 700 ecstasy tablets strapped to his waist concealed inside a length of pipe under a bandage.  The Crown alleged that before Mr Harriman left on that overseas trip, he spoke to and organised the importation with Mr Dixon and another co-accused, Mark Sandstad.  Various details of the trip were discussed and it was said that the appellant agreed to assist in the distribution of the ecstasy once it was brought into New Zealand.  Mr Harriman pleaded guilty at the commencement of the trial to counts 5 and 6.

[13]     The defence for Mr Dixon was essentially a denial that he knew about or acted to assist in such a way as to make him a party to the matters the subject of counts 5 and 6.

Unreasonable verdicts

[14]     The law in relation to this ground of appeal is set out by the Supreme Court in R v Owen [2007] NZSC 102 at [17] as follows:

The question is whether the verdict is unreasonable.  That is the question the Court of Appeal must answer.  The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence the jury could not reasonably have been satisfied to the required standard that the accused was guilty. 

See also [12] and [14].

[15]     The Supreme Court in Owen at [13] endorsed the following principles emerging from this Court’s decision in R vMunro [2007] NZCA 510:

(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b)Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court.  Assessment of the honesty and reliability of witnesses is a classic example.

(c)The weight to be given to individual pieces of evidence is essentially a jury function.

(d)Reasonable minds may disagree on matters of fact.

(e)Under our judicial system the body charged with finding the facts is the jury.  Appellate courts should not lightly interfere in this area.

(f)An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record.  The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside. 

Count 1 – importation of ecstasy on 26 June 2005

[16]     The appellant says that the Crown case required the jury to draw inferences which were not available on the evidence.  In terms of count 1, the appellant accepts there was evidence from which the jury could properly conclude that the appellant had some knowledge of Mr Harriman’s activities.  However, the appellant submits, there was nothing to suggest that the appellant aided or abetted in importation.  At best, what evidence there was gave rise to inferences of equal weight. 

[17]     In developing the submissions on this aspect, Mr Tennet for the appellant emphasised that the evidence related to what happened to the tablets after importation and that was separate offending because it was in count 2.  (Mr Tennet was not counsel for Mr Dixon at trial, but appeared for one of the co-accused, Paul McNeil.)

[18]     In terms of count 1, there were two key aspects of the Crown case.  First, evidence of withdrawal of $8,000 in cash from the appellant’s bank account on 16 June 2005, the day before Mr Harriman flew to Europe.  When the police then searched Mr Dixon’s address on 27 July 2005, some $2,350 in notes was found.  Mr Dixon’s defence was that the money had been withdrawn for living expenses.  However, there was also evidence of very small withdrawals over the period from 23 June and 18 July 2005, the period when the appellant said he was living off the $8,000 withdrawal.

[19]     The second aspect is evidence of telephone calls after Mr Harriman returned to New Zealand.  The Crown emphasises both the content and timing of the first call from Mr Harriman to the appellant in particular.  That call took place within two hours of Mr Harriman’s return to New Zealand.  The Crown also points to other calls after Mr Harriman’s return which, read in context, point to Mr Dixon’s involvement as a party in the importation.

[20]     It is helpful to set out some of the detail from this first call on 26 June 2005:

Dixon:

How’d you go, alright?

Harriman:

Good, good, yeah it’s all done mate.

Dixon:

Good.

Harriman:

Yeah yeah.

Dixon:

Everything good?

Harriman:

Yeah oh it’s cool.

Dixon:

Good one man (cut over).

Harriman:

Yeah I’ll tell you all about it when I see you anyway.

Dixon:

Yeah for sure.

Harriman:

But ah you’ll kick a goal this time round.

Dixon:

Pardon.

Harriman:

You’ll kick a goal this time round.

Dixon:

Yeah good one.

Harriman:

Yeah it’s all, it’s all here.

Dixon:

Oh good shit.

Harriman:

Yeah yeah it’s all happening mate.

Dixon:

Good one.

Harriman:

Yep (background voices) you’ve heard of superman?

Dixon:

Pardon?

Harriman:

Have you heard of superman?

Dixon:

Yes.

Harriman:

Yes.

Dixon:

Oh is that what you brought?

Harriman:

Yeah and the other ones, the other ones I told you about before.

Dixon:

Ah.

Harriman:

The other one I told you about before, you know that?

Dixon:

Oh yeah yeah yeah.

Harriman:

With that pattern on it?

Dixon:

Oh yeah yeah.

Harriman:

They’re they’re better.

Dixon:

Oh really.

Harriman:

Yeah. …

Harriman:

Yeah and actually I had a lot of fun on one myself.

Dixon:

…

Oh did ya (laughs)

Harriman:

Quite impressed actually.

Dixon:

Yeah.

Harriman:

Yeah so there you go.

Dixon:

Oh good one.

Harriman:

It’s all happening mate.

Dixon:

Oh that’s good aye.

Harriman:

…

Yeah I got ah, reamed when I got in. 

Dixon:

Here or?

Harriman:

Here.

Dixon:

Really.

Harriman:

Yeah yeah and in Frankfurt too, anyway I’ll tell you about that when I see you.

Dixon:

…

Yeah.

Harriman:

Alright, well you got good news and some you know, it’s all happening man.

Dixon:

…

Good man let’s do it.

Harriman:

Oh good and you got some money and that, you know in your pocket as well.

Dixon:

Yeah yeah I got some here for you.

Harriman:

Oh no, for you is my meaning.

Dixon:

Oh yeah yeah yeah that yeah that kept us going yep.

Harriman:

Good that’s great well maybe we should take a run up North shortly.

Dixon:

Yeah I think so aye.

Harriman:

Very shortly (laughs).

Dixon:

(Laughs) I think we’re gonna have to.

Harriman:

But I’ll think you’ll find you’ll be able to bowl these things anyway man.

Dixon:

Oh that’s good aye.

Harriman:

Yeah, anyway I’ll ah I’ll see ya when I see ya I hope, look catch you tomorrow.

Dixon

Yeah okay then.

Harriman:

Alright then.

Dixon:

So I’ll I’ll just, I’ll let him know aye.

Harriman:

Who’s that?  Ben.

Dixon:

Oh some … yeah.

Harriman:

…

Yes by all means please do.

Harriman:

…

Yeah just if you can get things happening your end I’ll take the other ones up there.

[21]     Mr Tennet emphasises the use of the future tense, for example, “you’ll kick a goal this time” and the absence of a reference to “we” in terms of the trip overseas.  That, however, has to be seen in the context of the call as a whole, its timing, and the other calls.  The latter are more inclusive and show Mr Harriman consulting the appellant.  There are text messages to similar effect.  For example, on 29 June 2005 the appellant sent a text message to Mr Harriman which said:   “Hey Al; I’m try’n; Not much joy; hard men to bargain with; 1000 @ 22 buks a piece. Fuk that; north look’n good”.

[22]     We accept the Crown submission that it was open for the jury to conclude that the first telephone call from Mr Harriman to Mr Dixon was confirmatory of a pre-importation arrangement between the appellant and Mr Harriman.  When the additional evidence as to the withdrawal of funds is added into the mix, there was a sufficient basis for the jury’s verdict on this count.  There is a contrast between this case and that where there is no evidence of steps prior to importation as was the case in R v Hancox [1989] 3 NZLR 60 (CA).

Count 4 – conspiracy to supply methamphetamine

[23]     The argument in relation to count 4 is that there was insufficient evidence before the jury to conclude that the Crown had proved beyond reasonable doubt that the identity of the controlled drug forming the subject of the alleged conspiracy was methamphetamine.  The appellant says the reasonable inference that the drug involved was cannabis cannot be excluded. 

[24]     The Crown accepts that it had to prove beyond reasonable doubt that the identity of the controlled drug was methamphetamine: R v Fonotia [2007] 3 NZLR 338 (CA). The Judge directed the jury on that basis. Mr Tennet, at the appeal hearing, withdrew a challenge based on an alleged misdirection in this respect. The issues sheet provided by the Judge to the jury included this requirement and provides a clear basis for the responsible withdrawal of this ground of appeal.

[25]     Again, we accept the Crown submissions that the evidence established a sufficient basis for finding that what was being discussed during the intercepted text messages and calls between the appellant and Mr Brown was methamphetamine. 

[26]     It is clear from the intercepted communications that the two men were dealing in something illicit and that the illicit material was a controlled drug.  There is no challenge to that in the context of this count.  From that starting point, the expert evidence was that it was “very typical, very common” for methamphetamine to be sold in $100 lots (one tenth of a gram or a “point”).  The police drugs expert, Detective Sergeant Brazier, also said methamphetamine was most commonly packaged in self-sealing plastic bags with a pattern on them. In contrast, Detective Sergeant Brazier said that $100 bags of cannabis were not common.  In re‑examination, he said he had never heard the phrase “$100 bag” in relation to cannabis.  He also said that the use of $100 bags for the sale of cannabis would be “rare”.  Finally, Detective Sergeant Brazier also gave evidence that cannabis “tinnies” were typically packaged in tinfoil. 

[27]     The relevant calls and text messages between the appellant and Mr Brown begin with a text message at 10.16 am on 7 July 2005 in which Mr Brown asked Mr Dixon:  “Hey bro u wouldn’t b able 2 bring me in a cple packets of gum wood u?  If so cheers”.  Fifteen minutes later, at 10.29 am that day, Mr Brown rang the appellant and asked:  “Ah hey, I wouldn’t be able to get two of those hundred dollar things?”  After this conversation, at 10.56 am that day, there is a further text message from Mr Brown to the appellant in these terms:   “An a bit of foil wd b gd 2 bro”.  Then, at 2.17 pm that day, Mr Brown rang the appellant and said:   “I was after two hundies of those things”.

[28]     Reference can be made then to a further text message, at 2.25 pm on 13 July 2005 from Mr Brown to the appellant which recorded: “Wil fix that coin an bagles up lata 2nite”.  Then, at 5.24 pm that night, Mr Brown sent the appellant a text message which said:   “Bro 125cc bagels cum in al pink or little suns no clear 1s which 1s u want”, to which the appellant replied, “Suns would b good”.

[29]     Subsequently at 9.48 am on 14 July 2005, Mr Brown asked the appellant over the telephone:   “Hey it’s not for me but ah is there any of those hundies? … I’ll grab one of those off you bro”.  In that same conversation, Mr Brown later said, “It’s all good so um well I’ll probably see you in a couple of hours and pick that thing up” and the appellant replied, “So you, you want one of those little leather hundred dollar bags”.

[30]     The Crown points to the contrast in the language used when talking about $100 dollar bags with the “and a bit of foil”.  The other relevant matter the Crown emphasises is the use of a code when discussing illegal substances in comparison to the very explicit discussion between the two men when talking about the medicines and treatments used by Mr Brown to cope with his withdrawal symptoms.  For example in a call at 12.14 pm on 16 July 2005, Mr Brown referred to his “medicine” and “sleeping pills” and described the effect they had on him.  At 10.25 am on 19 July 2005, Mr Brown talked to the appellant over the telephone about how he had “beat that little bitch” and then went on to explain what he had left over in terms of medicine giving the proper names, that is, codeine, diazapam and bromadeine.

[31]     The same sorts of substances were referred to by Mr Brown with their chemical names in a telephone call on 20 July 2007.  This is to be contrasted with a later discussion in that call when the appellant asked Mr Brown, “What about that.  You know when you come over the other day. … No no the other thing we had.  Up in the room there. … In the bowl there”.  Again, the two men reverted to using a code.  Mr Brown then answered the appellant:  “It sped, it sped it up if you know what I mean”.  (In this context, it is relevant that Detective Sergeant Brazier referred to methamphetamine being a stimulant that speeds up body functions.)

[32]     Mr Tennet emphasises Detective Sergeant Brazier’s comment that it was “not common” for cannabis to be sold in $100 bags.  However, the Detective Sergeant’s evidence when read in total together with the other evidence makes it plain that the inference could be drawn that the substance being discussed was methamphetamine. 

[33]     In circumstances where there was no evidence to the contrary, the only sensible conclusion to which the jury could come was that the two men were dealing in methamphetamine.

Count 5 – importation of ecstasy on 24 July 2005

[34]     The argument in relation to count 5 is similar to that in respect of count 1.   That is, that there is evidence of some knowledge on the part of the appellant but that the evidence does not support the inference that Mr Dixon was actively involved in the importation forming the subject of this charge.  The appellant says that, by contrast with the evidence as to Mr Sandstad’s involvement, there was not sufficient evidence to prove the requisite involvement on the part of the appellant.  Possibly, the appellant accepts, there was evidence of some further involvement “down the chain” or some other enterprise being planned with another person, a Mr Arno.

[35]     Again, we accept the Crown submissions that there was sufficient evidence.  The Crown is right that there is evidence in the phone calls to support the conclusion that there was early and continued involvement by the appellant in this importation.

[36]     As the Crown points out, as early as 30 June 2005, Mr Harriman telephoned the appellant and asked if he could come out because “I[’ve] got something I want to talk to you about.  … And I’ll let you know what’s going on, this is quite interesting. … Fairly exciting.”

[37]     Later that same day, in another telephone call, Mr Harriman left a message with the appellant in these terms:   “It’s all happening here so it’s all go”.

[38]     Then, later, on 2 July 2005 the appellant told Mr Harriman over the telephone:  “I wanna talk to you about our plan anyway”.  Mr Harriman said later in the call:   “I’ll just go and talk to him.  I’m gonna get him teed up and see if they can get something happening for us.”  The Crown correctly emphasises the use of inclusive language and that discussion of “our plan” was instigated by the appellant.

[39]     In other calls around this time, Mr Harriman asked Mr Sandstad (admitted to be a member of the conspiracy to import ecstasy) whether he had been able to contact his associates.  During a telephone call on 6 July 2005, Mr Sandstad told Mr Harriman:   “[T]hey’re not back till Sunday”.  Mr Sandstad then said he would send a text message to them in the meantime.  An hour later Mr Harriman telephoned the appellant and left a message saying:   “[S]ome people want to do something with you, with us on Sunday probably, so um … it’s all happening”.

[40]     The phone calls disclose discussions about financing which become increasingly urgent.  Then there is evidence of the appellant’s activities in arranging later supplies.  Finally, Mr Tennet is realistic in accepting there are difficulties in his submissions given the text messages from the appellant to Mr Arno on 14 July 2005 which are in the following terms:

Bro I just got ya sms ya finish ya stuff; we can’t do anything I hav 2 b there; bro stuff organised already; as much as u can handle; up 2 u boss in Europ.

E 2 wk – Bali afta.  U wanna wait.

Count 6 – possession of ecstasy for supply

[41]     We turn then to Mr Tennet’s submission about count 6, the possession of ecstasy for supply.  The appellant says that because the importation of ecstasy forming the subject of this count was not completed (count 5), neither the appellant nor Mr Harriman ever had possession of the ecstasy in a legal sense and there was no evidence on which a jury could convict the appellant in relation to count 6.

[42]     We agree with the Crown that there is no reason in principle why the two charges should be mutually exclusive.  Here, Mr Harriman pleaded guilty to possession for supply.  There is no reason why the appellant could not be a party to that.   There was evidence to show that while Mr Harriman had custody of the drugs, this was as a result of the arrangement entered into by Mr Harriman, Mr Dixon and others.  There was a basis from which the jury could properly conclude that the ecstasy was subject to the joint control of Mr Dixon, and others.

Directions to the jury

[43]     We turn then to consider the grounds of appeal based on the directions in the summing-up.

Expert evidence

[44]     The appellant says that while the Judge correctly identified Detective Sergeant Brazier as an expert, he erred in not also explicitly identifying two defence witnesses, Nicholas Powell and Matthew Bowden, as experts.

[45]     Nicholas Powell is a forensic scientist with expertise in examining items and substances involving drug abuse.  The main thrust of his evidence was that a party pill containing benzylpiperazine (BZP) and trifluoromethylphenylpiperazine (TFMPP) produces the same sort of response in the brain as a recreational dose of ecstasy.  There was no cross-examination of his evidence.

[46]     Matthew Bowden has had a lengthy involvement in the development of the party pill industry in New Zealand.  He gave evidence about the existence of that industry and explained that one “train of thought” was that party pills should look like ecstasy and so would have a similar logo pressed on them.  He also said that he had seen the “Superman” logo on party pills.

[47]     The latter evidence, in particular, the appellant says was important for the defence case that the importation in relation to count 1 related to party pills and not any controlled drug.  The defence argued that the references to “Supermans”, for example, in the first call were to party pills or other herbal products.

[48]     The Judge’s directions on expert evidence were as follows:

[80]     Expert witnesses are permitted to give opinions on subjects within their areas of expertise that are beyond the general knowledge of jurors.  Detective Sergeant Brazier was in this category.  You will recall he gave evidence about certain slang and other terms used in respect of certain types of controlled drugs, heroin, methamphetamine, and MDMA-Ecstasy.  He also gave evidence of the use of the term “ouwn bra” as being an example of pig English, or as we later heard gibberish.  Detective Sergeant Brazier also referred to the use of the term tape measure to refer to electronic scales.

[81]     In assessing Detective Sergeant Brazier’s evidence and his opinions, you must have regard to his qualifications and experience.  But this is a trial by jury, not a trial by expert.  It is for you to decide how much weight or importance you give to his opinions, or, indeed, whether you accept them in the context of all the evidence you have heard.  It is entirely a matter for you.

[49]     The Crown points out that the Judge described the Detective Sergeant as being “in this category”.  In other words, the directions did not on their face say that this was a closed category.  However, in the circumstances of this case, where the defence had called evidence from persons whose status as experts was not challenged, the Judge should have said Messrs Powell and Bowden were also in this category.  The issue is whether this omission gives rise to a miscarriage.

[50]     As to Mr Bowden, the potential concerns are lessened here because the Judge does remind the jury in some detail of Mr Bowden’s evidence.  He said at [99]:

So far as the defence of Mr Dixon is concerned, [his counsel] said that the Crown had only established speculation and innuendo.  [His counsel] said first that there was no evidence of any importation of MDMA.  He submitted in relation to exhibit 71, the examples of the amphetamine-types with the Superman logo on them, that these examples included all amphetamine-types including BZP.  He pointed to the evidence of Mr Bowden who mentioned seeing party pills with the Superman logo on them. 

[51]     It is also relevant that Mr Bowden’s evidence on the “Superman” point was not particularly strong.  The questions and answers went like this:

QWhat I’m asking about is the party pills tablets have you seen any of those with insignia such as that?

AI’ve seen the Superman logo on a couple of occasions. 

QAnd where were they sourced from?

AFirst time I saw them around 2003 just somebody at a party had some with the Superman logo on them, don’t know where they got them from.

Q        But were they party pills rather than controlled drugs?

AI don’t know what was in them, they looked more like they’d come from the black market.

Q        So you didn’t test them yourself?

A        No I didn’t test them.

[52]     There was then some discussion about the colour of the tablets that he had seen.  The evidence then continued as follows:

QNow, going back to the Superman insignia or S insignia that we were talking about, have you seen party pills with such branding on them?

AMore recently I have seen some other yellow tablets with the Superman logo on them which I understood just contained party pill ingredients.

Q        Were they manufactured by your company or another?

A        No another company.

[53]     Mr Powell’s evidence, with respect, cannot be said to be critical. 

[54]     In relation to both witnesses it is fair to conclude, as the Crown submits, that neither formed any substantially contentious part of the defence cases.  The end result was that the jury did know there was a then legitimate industry in relation to party pills and it was common for party pills to mimic ecstasy in appearance.  There was no dispute about these matters.  In these circumstances, while the two witnesses should have been identified by the Judge as experts, the omission has not given rise to a miscarriage.

Character evidence

[55]     Stevens J directed the jury in relation to character evidence in the following way:

[78]      Counsel for the accused Mr McNeil called three witnesses who gave evidence of Mr McNeil’s good character and reputation in the community.  Of course, being of good character is not in itself a defence.  As a matter of logic, every offender must commit a first offence.  However, the character evidence is relevant in two respects: first, as to whether the accused, given his good character and reputation, is likely to have committed the offence with which he has charged; and, secondly, as to the credibility of the accused’s evidence.  What weight you give to this character evidence is of course a matter entirely for you. 

[79]     Counsel for the accused Mr Dixon called one character witness Mr Knuinam in support of Mr Dixon’s reputation.  You will recall that he said Mr Dixon was well respected in the community, pretty solid, salt of the earth type of guy.  But again, what weight you give to his evidence is a matter for you.  Also, the evidence of Mr Knuinam is not relevant to Mr Dixon’s credibility as to what he said in Court because, as I have said, he did not give evidence. 

[56]     The submission is that the direction in relation to Mr Knuinam who gave evidence on the appellant’s behalf was inadequate.  In particular the appellant says, first, there should have been an extended description of the purpose of character evidence as was given in relation to the witnesses on behalf of Mr McNeil.  Secondly, the appellant says that the Judge should have made it clear that this evidence was relevant to Mr Dixon’s out of court statements.  The appellant did not give a formal video interview but the jury heard evidence of a reasonably lengthy question and answer discussion between the appellant and a police officer in the course of which the appellant denied the offending.

[57]     It would have been preferable in the circumstances for the Judge to have made it plain that what had been said in relation to the witnesses for Mr McNeil applied equally to the evidence on behalf of the appellant.  We have no real doubt however that in the context of a comprehensive summing-up this would have been apparent to the jury.  The Judge should have directed the jury that what was said applied to Mr Dixon’s out of court statements.  It is possible that the Judge did not mean any more than a reminder to the jury that, unlike Mr McNeil, the appellant had not given evidence but it would have been preferable to avoid any ambiguity about that.

[58]     This Court in R v Falealili [1996] 3 NZLR 664 said that where evidence of good character is adduced, an “appropriate direction” should be given as to its use (at 667). The Court continued at 667 that “generally” the direction “will cover both limbs of credibility and propensity”. Importantly though the Court did not require a particular form of words to be used noting that the direction will be “tailored” to meet the circumstances (at 667).

[59]     We have concluded that what was said here does not give rise to a miscarriage.  The evidence of Mr Knuinam was not particularly relevant or probative (he and Mr Dixon were childhood friends and had met up again as adults and had worked together for a period).  To the extent that the evidence was relevant, the Judge accurately summarised it.  Further, given the directions in relation to Mr McNeil’s evidence, ultimately, the jury would have been clear as to the use to which this evidence could be put.

Conflation of counts 5 and 6

[60]     The appellant argued that Stevens J failed to distinguish count 6 from count 5 in his directions to the jury but Mr Tennet accepted that this ground fell away if it was legally possible for the two counts to coexist.  We add that, in any event, the Judge’s directions and the issues sheet did differentiate between the elements of the respective counts.

Failure to put defence case

[61]     In respect of all counts, the appellant says that Stevens J failed adequately to put the defence case and made a number of errors amounting to misdirections in his summing-up.

[62]     Under this heading, the appellant raises a number of points which are said to lead to a lack of balance in the summing-up and a failure to put the defence case.  As well, there is a specific criticism of the terminology used in describing the evidence on count 1.  We take that point first.

[63]     In a discussion on the law relating to parties in the context of count 1, Stevens J said this:

[35]     In respect of Mr Dixon, there is some direct evidence of his involvement or participation as a party to the importation prior to the alleged importation by Mr Harriman on 26 June 2005 which I will refer to later.

[64]     Mr Tennet’s complaint is at the use of the description “direct” evidence given that this was a, largely, circumstantial case.

[65]     We see no merit in this submission.  We doubt the jury would have taken this as signalling evidence of a different character from the other evidence before them.  There were orthodox directions on the need to consider all of the evidence and as to the use of circumstantial evidence.  It is not helpful to focus in this way on one word in a comprehensive summing-up.  Further, there was evidence of actions by Mr Dixon which could be said to be direct evidence of acting as a party, for example, providing money used to fund the importation.

[66]     Reading the summing-up as a whole, we consider the defence case was properly put.  Mr Tennet refers to matters such as conflation of the defences of the appellant and Mr Harriman in count 2 and the Judge’s failure to remind the jury in the context of count 4 that evidence relating to Mr Brown was not admissible against the appellant.

[67]     In terms of count 2, Mr Tennet’s underlying concern is that the effect of the summing-up was to “inextricably link” the appellant’s case with that of Mr Harriman (who gave evidence).  In our view, the jury would have been aware from the  Judge’s directions that the Crown had to prove the case in relation to each of these two men to the requisite standard and it was not simply a matter of guilt by association.

[68]     In any event, the defences were effectively the same.  The Judge noted that he would deal with the “specific” defences of Mr Dixon and Mr Harriman together “because they cover essentially the same ground” (at [132]).  On the face of the record, that statement is accurate.  Stevens J spelt out the defences in these terms:

[133]    Mr Harriman and Mr Dixon say that there was no importation of ecstasy on 26 June.  Any talk in the various calls regarding the distribution phase was in relation to party pills and herbal products, and I have already spoken about that aspect in relation to count 1.

[134]    But also Mr Harriman says, and Mr Dixon’s counsel … supports the point, that any dealings with persons up north involved legitimate business transactions and checking out work opportunities in the north.  Also, you will recall the additional detailed points discussed by both Mr Mansfield and [counsel for Mr Dixon] as to why neither of their clients entered into an agreement to supply or distribute ecstasy.  So, I just refer you back to what they said to you in their closing submissions.

[69]     Mr Tennet is critical of the reference back to closing submissions given the passage of time between closing addresses in a multiple accused trial and the summing-up (five others were tried along with the appellant).  The appellant’s defence was, however, put in a manner consistent with the relevant authorities (see, for example, R v Guild CA219/04 11 October 2004 at [93] – [95]) and we are not aware of any critical matters of detail that were omitted.  While the trial was quite lengthy (it commenced on 20 November 2006 with the summing-up and verdicts delivered on 18 December 2006), the issues relating to the defence on these counts were not, in general, particularly difficult or complex.  In contrast, as Mr Johnstone points out, more detail was provided to the jury in summing up about Mr Brown’s defence because it was factually distinct and more complicated.

[70]     Finally, the Judge gave a general direction that out of court statements of an accused should not be used against a co-accused.  There was no need to repeat that warning.

[71]     Accordingly, the appeal against conviction fails.

Sentence appeal

[72]     In support of the submission that the starting point of six years nine months imprisonment was too high, the appellant raises a number of matters.  Those matters boil down to the argument that the appellant’s role in the offending, the amounts involved and the fact that counts 2 and 4 were conspiracy charges warranted a lower starting point.  Mr Tennet put it this way in his written submissions:

Accordingly, Counsel submits that there were two (comparatively) small importing charges within the lower level of the band in [R v] Wallace [[1999] 3 NZLR 159 (CA)] together with the conspiracy involving [R v] Fatu [[2006] 2 NZLR 72 (CA)] to be considered, there being three transactions that he was properly looked at. With all due respect, six years was the absolute upper limit for a sentence before personal circumstances were put into place and quite apart from any issues of parity.

[73]     In terms of parity with the co-offenders, Mr Tennet submits that the appellant’s sentence should have been much closer to that of Mr Sandstad (who was sentenced to a term of three years nine months imprisonment), and that of Messrs Brown, Atwell and McNeil (each of whom, respectively, were sentenced to terms of two years three months imprisonment).

[74]     We accept the submission for the Crown that the starting point adopted was appropriate given the volume of offending and the appellant’s overall culpability.

[75]     The offending involving ecstasy was plainly at least in the middle to upper end of category 2 in R v Wallace.  (Category 2 warrants starting points in the range of five to eight years imprisonment.)  Counsel for Mr Dixon at sentencing accepted that the amount of ecstasy involved was some 1,700 tablets.  It was open to the Judge to view this as a commercial enterprise reflecting organisation over a period of time.

[76]     As to the appellant’s culpability, in sentencing the appellant, the Judge proceeded on the basis that Mr Harriman was in the category of instigator and prime mover.  That assessment was reflected in Mr Harriman’s sentence of 12 years with a minimum period of imprisonment of six and a half years.  Stevens J said that the appellant was “plainly” close to Mr Harriman as shown by the regularity of their telephone and other contacts.  The Judge also observed that Mr Dixon was prepared to stay in New Zealand and his role was in facilitating the importation through encouragement and, at least in relation to the June importation, assisting with funding.  He was then a participant in the distribution of the ecstasy in New Zealand as the telephone discussions with Mr Harriman and the appellant’s subsequent conduct demonstrated.  The Judge continued:

[101]    [Counsel for the appellant] submitted that an appropriate starting point for the totality of offending is in the region of six years imprisonment.  However, I consider that bearing in mind the full extent of Mr Dixon’s involvement at a significant level of distribution and having regard to the particular role which he played in supporting and encouraging Mr Harriman in respect of two importations and then facilitating distribution, together with the two types of drugs involved, an appropriate starting point is six years nine months.

[77]     There is no error in that approach.

[78]     It is also apparent from reading the sentencing remarks as a whole that the Judge has taken into account the fact that the charges included conspiracy which carries a lesser maximum: R v Fatu at [40] and see also R v Te Rure [2007] NZCA 305 at [25] – [27]. That factor assumes lesser importance in this case given that the June conspiracy was well advanced and in any event neither conspiracy charge was the lead offence.

[79]     As to the suggestion insufficient credit was given for mitigating factors, from the starting point of six years nine months, the Judge gave Mr Dixon some credit for the fact that he had no previous convictions and was otherwise of good character.  A final sentence of six years imprisonment was imposed.  No further adjustment was required.  The Crown did not seek any minimum period of imprisonment and none was imposed. 

[80]     Turning then to issues of parity, we attach a schedule of the relevant sentences (adapted from the sentencing schedule appended to Stevens J’s sentencing remarks).  On this aspect, after presiding over the trial the Judge had the opportunity to assess the relative culpability of the offenders.  No issue can be taken with his assessment.  The appellant was close to Mr Harriman and was involved at a significant level.  While Mr Sandstad took a similarly supportive role it was in relation to one importation (that in July 2005  – count 5) and one count of possession of ecstasy for supply (count 6).  The July importation did not progress very far, in contrast to that in June.  Mr Brown’s offending was captured by counts 2 and 4, that of Mr Atwell by count 2 and that of Mr McNeil by count 3 so the volume and range of offending reflected in the appellant’s sentence was of a different order.   On the well-settled principles relating to disparate sentences, we are not satisfied there is any basis for interference: R v Rameka [1973] 2 NZLR 592 (CA) and R v Lawson [1982] 2 NZLR 219 (CA).

[81]     We dismiss the appeal against sentence.

Result

[82]     For these reasons, the application for extension of time for filing the appeal is granted but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington

APPENDIX

Schedule of Sentences

Allen Louis HARRIMAN

Count	Offence	Section	Max Penalty	Sentence Imposed
1	Import Class B drug MDMA	s 6(1)(a)	14 years	8 years
2	Conspiracy to supply Class B drug MDMA	s 6 (2A)(b)	10 years	6 years
3	Conspiracy to supply Class A drug heroin	s 6(2A)(a)	14 years	4 years
5	Import Class B drug MDMA*	s 6(1)(a)	14 years	8 years
6	Possession Class B drug MDMA for supply*	s 6(1)(f)	14 years	8 years
7	Possession of Class A drug heroin for supply	s 6 (1)(f)	Life imprisonment	12 years with minimum period of six and a half years

Wayne Stuart DIXON

Count	Offence	Section	Max Penalty	Sentence Imposed
1	Import Class B drug MDMA	s 6(1)(a)	14 years	6 years
2	Conspiracy to supply Class B drug MDMA	s 6 (2A)(b)	10 years	4 years
4	Conspiracy to supply class A drug methamphetamine	s 6 (2A)(a)	14 years	4 years
5	Import Class B drug MDMA*	s 6(1)(a)	14 years	6 years
6	Possession Class B drug MDMA for supply*	s 6(1)(f)	14 years	5 years

James Kapua BROWN

Count	Offence	Section	Max Penalty	Sentence Imposed
2	Conspiracy to supply Class B drug MDMA	s 6 (2A)(b)	10 years	2 years
4	Conspiracy to supply class A drug methamphetamine	s 6 (2A)(a)	14 years	2 years 3 months

Carl Edward ATWELL

Count	Offence	Section	Max Penalty	Sentence Imposed
2	Conspiracy to supply Class B drug MDMA	s 6 (2A)(b)	10 years	2 years 3 months

Paul Douglas MCNEIL

Count	Offence	Section	Max Penalty	Sentence Imposed
3	Conspiracy to supply Class A drug heroin	s 6 (2A)(a)	14 years	2 years 3 months

Mark SANDSTAD

Count	Offence	Section	Max Penalty	Sentence Imposed
5	Import Class B drug MDMA*	s 6(1)(a)	14 years	3 years 9 months
6	Possession Class B drug MDMA for supply*	s 6(1)(f)	14 years	3 years

* Guilty pleas were entered on arraignment.  Otherwise, all offenders were found guilty at trial of the relevant charges.
All sentences are concurrent.