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 sent on 29 June to Mr Bryant’s cellphone number.  It was received by him.  He understood it to be an offer to supply ecstasy.  Whether the text message in fact concerned that drug, I regard as a jury question, there being evidence that “ekkyz” is a slang term for the controlled drug MDMA, commonly known as ecstasy.

[3]       A more substantial question is whether there is evidence sufficient to show the sender of the relevant text message was the accused.  To my mind there is enough evidence to enable a properly-directed jury to conclude that Mr Gent was the sender.  In that regard I am influenced by the text message between the same two cellphones on 16 May 2005 in which the sender gave his name as “Daniel Gent”.  Moreover, the exchange of text messages on 29 June, including the one relied upon as constituting an offer to supply, were followed by a telephone conversation between Messrs Gent and Bryant.  The context of that telephone conversation is consistent with the content of the text messages which immediately preceded it.  Mr Bryant has told the jury that the participants in the discussion were himself and Mr Gent.

[4]       These items of evidence, in combination, indicate to me that it is a jury question whether the accused was the user of the relevant cellphone and, more particularly, whether it is established he sent the text message containing an offer to supply.

The appellant’s case

[8]       Mr Gent submitted that the verdict of the jury was against the weight of the evidence, in that there was a herbal supplement that could be referred to as Ecstasy or “ekkyz”.  He said therefore there must have been a reasonable doubt whether the reference to “ekkyz” in the text message was a reference to the Class B controlled drug MDMA (Ecstasy).  In support of his submission Mr Gent referred to the passages of evidence referred to above and other passages of evidence where the witnesses referred to the drug terminology. 

[9]       Mr Gent also submitted that in the phone call Mr Bryant had asked if it “was the same kind” as his mate Potsie got and that Mr Gent said: “Yeah yeah they are actually”.  The evidence at trial was that Potsie had been supplied BZP.  Mr Gent submitted that meant that Mr Bryant knew that what he was asking for was herbal ecstasy BZP or that there was a misunderstanding of what he was asking for and being offered. 

[10]     That, however, was not Mr Bryant’s evidence.  Mr Bryant said that he asked Mr Gent if he could purchase Ecstasy from him.  It was Mr Bryant’s evidence that he intended to purchase the Class B controlled drug, MDMA, Ecstasy from the appellant.  We also note that in the course of the intercepted telephone conversation the appellant said of what was to be supplied to Mr Bryant:  “They’re the goods definite”.

[11]     Next, Mr Gent referred to the text of the telephone call where he had replied there were three of them because they were that good.  Mr Gent submitted that did not fit with the taking of MDMA Ecstasy because he has been told that if you had three tablets of MDMA Ecstasy you would die or end up in hospital, but he regularly uses up to five capsules of herbal Ecstasy in a night out partying.  Such evidence was not before the jury.  Mr Gent did not give evidence at trial.  There is no evidence on the issue of the effect of taking three tablets of Ecstasy.  But in any event the three capsules could, of course, be consumed at different times. 

[12]     Mr Gent then referred to the fact that the police found herbal Ecstasy at his home and that he was not found in possession of any Ecstasy.  The short answer to that submission is, however, that Mr Gent was not charged with possession of MDMA Ecstasy.  He was charged with and convicted of offering to supply MDMA Ecstasy.  If the police had found MDMA Ecstasy at his house there would have been an additional charge. 

Decision

[13]     The ground for the appeal must be based on s 385(1)(a) of the Crimes Act, namely that the jury’s verdict was unreasonable or could not be supported having regard to the evidence. 

[14]     However, reference to the above evidence shows that there was sufficient evidence before the jury from which they could draw the inference that the reference to “ekkyz” in the text message from Mr Gent to Mr Bryant was a reference to the Class B controlled drug MDMA (Ecstasy) as opposed to a reference to a herbal drug.  There is the evidence of Mr Bryant as to his understanding of what he and Mr Gent were discussing, and his evidence of the reference to “ekkyz” being to Ecstasy.  There is also the evidence of both detectives concerning the matter.  Further, there is also the evidence that the price of MDMA (Ecstasy) tablets was between $70 and $90 at the time and Mr Gent’s reference to the tablets being 75 “squidz” (dollars) each.  The price of $75 is consistent with the “ekkyz” referred to being the Class B controlled drug (MDMA) ecstasy. 

[15]     Mr Gent’s complaint is that the jury rejected the possibility the reference to “ekkyz” was a reference to a herbal high.  That finding was, however, open to the jury on the basis of the evidence the Crown had led.  The verdict can not be said to be unreasonable or against the weight of evidence.  As the Judge identified in dismissing the application for discharge on this count, the matter was properly a question for the jury.

[16]     The jury can have been in no doubt that the issue was an important one for the defendant.  Mr Gent’s defence was more than adequately put to the jury by the Judge in summing-up.  The Judge identified the issues that the jury had to be satisfied on, in particular that the reference to “ekkyz” was a reference to MDMA (Ecstasy) as opposed to a reference to a herbal high.  The Judge dealt with the issue in some detail when he set out the competing arguments at [43] to [49] of the summing-up.

Further ground

[17]     Although Mr Gent did not deal with the matter in any detail in his written submissions, he also took issue with a passage of evidence that emerged during the re-examination of Detective Gulliven.  The evidence arose out of a question relating to the fact that no drugs were found on Mr Gent’s property and whether that was unusual.  The Detective stated:

The defendant had moved out of Dunedin.   Secondly his main supplier in relation to cannabis ..

The evidence ceased at that point.  Mr Powell has confirmed with Mr Wright, Crown counsel at trial, that at the reference to cannabis Mr Wright held up his hand to stop the detective’s evidence.  Nothing was said about that matter at the time.

[18]     As Mr Powell responsibly conceded, the reference to the appellant being involved with a supplier of cannabis could be prejudicial and illegitimately so.  The issue is whether a miscarriage of justice has been caused by that reference:  R v Gray CA361/96 20 February 1997. 

[19]     Relevant considerations to that issue are:

(a)       counsel did not see the need to raise the matter when it arose; 

(b)       the reference was a passing reference in the course of re-examination; 

(c)       it was stopped as soon as it occurred;

(d)      the transcript did not go to the jury; and 

(e)       counsel did not seek to have the Judge direct on the matter. 

[20]     We are not satisfied the reference would have affected the jury’s consideration of the remaining count.  The jury had heard substantial evidence from Ms Sheenan regarding the charge that Mr Gent faced of supplying a Class A drug, Psilocybin to her.  As noted Mr Gent was discharged in relation to that count immediately before addresses.  In the circumstances the Judge could have taken the view that commenting on the slip by the detective in referring to a cannabis supplier would have been counterproductive serving only to remind the jury of evidence which ought never to have been led:  R v N CA477/04 16 March 2006.  In the circumstances of this case we do not consider the reference has led to a miscarriage of justice. 

Result

[21]     The appeal is dismissed.

Solicitors:           
Crown Law Office, Wellington