The Queen v Harriman

[2008] NZCA 53

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/07
[2008] NZCA 53

THE QUEEN

v

ALLEN LOUIS HARRIMAN

Hearing:13 February 2008

Court:Ellen France, Williams and Heath JJ

Counsel:R M Mansfield for Appellant

D G Johnstone for Crown

Judgment:11 March 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No

Introduction  [1]
Grounds of appeal  [6]
Background   [10]
Conviction appeal  [18]

Admissibility issues  [19]

The Europol CD-ROM  [20]

Detective Sergeant Brazier’s evidence about tape measures  [41]

Directions to the jury  [52]

Expert evidence  [53]

Guilty pleas  [62]

Timing of jury deliberations  [66]
Sentence appeal  [71]
Result  [84]

Introduction

[1]       The appellant was convicted after trial by jury in the High Court on four drug related charges, namely:

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

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

(c)Conspiring to supply a class A controlled drug, heroin (count 3); and

(d)Possessing heroin for supply (count 7).

[2]       At the commencement of the trial, the appellant pleaded guilty to a charge of importing ecstasy on 24 July 2005 (count 5) and to a charge of possession of ecstasy for supply (count 6).

[3]       The appellant was sentenced on 22 February 2007 by the trial Judge, Stevens J, to an effective sentence of 12 years imprisonment with a minimum period of imprisonment of six years six months:  HC AK CRI 2005-004-14921.

[4]       The appellant appeals against conviction and sentence.

[5] Judgment on an appeal by the appellant’s co-accused, Wayne Stuart Dixon, is also being delivered today: [2008] NZCA 52.

Grounds of appeal

[6]       The grounds of appeal on the conviction appeal can be grouped into three categories.  First, there are issues about the admissibility of evidence.  Two pieces of evidence are in issue, namely:

(a)       images from a CD-ROM called the Europol Ecstasy Logo Catalogue 2006; and,

(b)       evidence from Detective Sergeant Brazier as to the use of the phrase  “tape measure” as a code for electronic scales. 

[7]       Secondly, the appellant challenges a number of aspects of the Judge’s directions to the jury.  The appellant says that Stevens J should have included a witness for the appellant in the directions given about expert witnesses, and that there should have been directions about the effect of the appellant’s guilty pleas on counts 5 and 6.

[8]       Finally, the appellant says there were problems with the timing of the jury’s deliberations, in particular, the proximity of the jury’s retirement to the Christmas vacation.

[9]       The sentence appeal is brought on the basis that the sentence imposed is manifestly excessive.

Background

[10]     All of the charges came to light out of an interception warrant operation conducted by the police, known as Operation Puma.  During the period between 24 June 2005 and 27 July 2005, the police intercepted and recorded telephone communications between the appellant and others.

[11]     Counts 1 and 2 related to the importation of and conspiracy to…