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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Dixon

Details

AGLC: The Queen v Dixon [2008] NZCA 52
Case: [2008] NZCA 52
Decision Date: 11 March 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Wayne Stuart Dixon, appealed against his conviction and sentence for various drug-related offences. The appellant was convicted of importing a class B controlled drug, MDMA (ecstasy), on 26 June 2005, conspiracy to supply ecstasy, conspiracy to supply a class A controlled drug, methamphetamine, importing ecstasy on 24 July 2005, and possession of ecstasy for supply. The appellant was sentenced to an effective term of six years imprisonment. The primary issues on appeal were whether the verdicts were unreasonable and whether there were misdirections made by the trial judge in summing up to the jury. The court found that the verdicts were reasonable and that there were no misdirections made by the trial judge. The appeal against conviction was dismissed. In terms of the sentence appeal, the court found that the starting point adopted was appropriate given the volume of offending and the appellant's overall culpability. The appeal against sentence was also dismissed. In conclusion, the application for extension of time for filing the appeal was granted, but the appeal was dismissed.

Orders