The Queen v Gent - [2007] NZCA 16

IN THE COURT OF APPEAL OF NEW ZEALAND
CA456/06
[2007] NZCA 16
THE QUEEN
v
DANIEL FRIEDL GENT
Hearing:15 February 2007

Court:Robertson, Ronald Young and Venning JJ
Counsel:Appellant in Person

A M Powell for Crown

Judgment:21 February 2007 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1] On 19 September 2006 the appellant was convicted on one charge of offering to supply a Class B controlled drug, namely MDMA (Ecstasy) to Nigel David Bryant. He appeals that conviction.
Background
[2] Mr Bryant gave evidence for the Crown. Mr Bryant said that he asked Mr Gent if he could purchase some Ecstasy. Mr Bryant confirmed he received a text on 29 June that he attributed to the appellant. The text read:
Gt sum ekkyz again 75 squidz each.

Mr Bryant also gave evidence that he and Mr Gent, the appellant, were parties to an intercepted telephone conversation that followed the text. The telephone conversation was consistent with the appellant offering to supply something to Mr Bryant.
[3] In cross-examination Mr Bryant accepted that although “ekkyz” was a slang term which could refer to the Class B controlled drug, Ecstasy, it also could refer to herbal highs or legal drugs.
[4] The Crown also called evidence from two detectives, Detective Gulliven, who analysed the text messages and telephone conversations between the appellant and Mr Bryant and Detective Ferguson, a detective of five and a half years’ experience in the drug squad. Detective Gulliven confirmed that the Class B controlled drug Ecstasy can be referred to as:
Es, Ekkyz, lollies, more recently discs, there are a no. of variations used for Ecstasy.

[5]       He also confirmed that the price range for Ecstasy was anywhere between seventy and ninety dollars. Detective Gulliven was not aware of a herbal pill marketed as Ekkyz but he confirmed there was a herbal pill called Ecstasy. He also accepted there was nothing to prevent Ecstasy, the herbal pill, being shortened to the term “ekkyz”.
[6]       Detective Ferguson gave evidence that he associated the Class B controlled drug Ecstasy with the term “ekkyz”. He said he had never heard of the herbal pill known as Ecstasy being abbreviated to “ekkyz”. In cross-examination Detective Ferguson was prepared to accept it was possible that the term “ekkyz”, the slang, was used for herbal pills and that he would not know that.
[7]       At the end of the Crown case the accused moved for discharge under s 347 of the Crimes Act 1961 on the count on which he was convicted and the additional count of supplying a Class A controlled drug Psilocybin (magic mushroom). He was discharged on the additional count but the trial Judge, Panckhurst J, declined to discharge him on this count for the following reasons:
[2]       … With reference to the second count I consider there is a case to be left to the jury. The substance of the Crown case is a text message…

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 Gent

Details

AGLC: The Queen v Gent [2007] NZCA 16
Case: [2007] NZCA 16
Decision Date: 21 February 2007

CaseChat Overview and Summary

The appeal heard by the Court of Appeal of New Zealand involved Daniel Friedl Gent, the appellant, who was convicted of offering to supply a Class B controlled drug, MDMA (Ecstasy), to Nigel David Bryant. Gent's conviction arose from a text message he allegedly sent to Bryant on 29 June, which read "Gt sum ekkyz again 75 squidz each," and a subsequent telephone conversation between the two. Gent appealed this conviction on the basis that the term "ekkyz" could refer to a herbal supplement, not just the controlled drug MDMA, and that there was insufficient evidence to conclude he sent the incriminating text message.

The legal issues before the court were whether the term "ekkyz" in the text message referred to the Class B controlled drug MDMA or a herbal supplement, and whether there was enough evidence to establish that Gent was the sender of the text message. The court had to consider the Crown's evidence, which included Bryant's testimony that he understood "ekkyz" to mean Ecstasy, and the detectives' evidence that "ekkyz" was a slang term for MDMA. The court also had to consider the appellant's argument that the term could refer to a herbal supplement, and whether the evidence was sufficient to conclude that Gent sent the text message.

The court found that there was sufficient evidence to support the jury's conclusion that the term "ekkyz" referred to the Class B controlled drug MDMA. The court noted that the jury had substantial evidence to consider, including Bryant's testimony that he understood the term to mean Ecstasy, and the detectives' evidence that "ekkyz" was a slang term for MDMA. The court also found that the evidence was sufficient to establish that Gent sent the text message, based on the content of the text messages, the telephone conversation, and the fact that Gent had previously identified himself in a text message sent to Bryant. The court dismissed the appeal, holding that the jury's verdict was not unreasonable or against the weight of the evidence.

Orders