The Queen v Heidi Maria Greenfield
[2002] NZCA 12
•5 February 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA322/01 |
THE QUEEN
V
HEIDI MARIA GREENFIELD
| Hearing: | 5 February 2002 |
| Coram: | Gault J Blanchard J McGrath J |
| Appearances: | P H B Hall for Appellant D J Boldt for Crown |
| Judgment: | 5 February 2002 |
| JUDGMENT OF THE COURT DELIVERED BY GAULT J |
A jury in the District Court at Christchurch found the appellant guilty of one count of conspiracy to import a class B drug, namely ecstasy. On 31 August 2001 she was sentenced to 18 months imprisonment and granted leave to apply for home detention. She now appeals both her conviction and sentence.
In May 2000 the principal offender, Barrington Brown, went to the United Kingdom and subsequently to the Netherlands. He posted back to New Zealand in two parcels some 373 ecstasy tablets with an agreed street value of approximately $30,000. Mr Brown admitted arranging the importation of the ecstasy and pleaded guilty. He was sentenced to imprisonment for three years. The case against the appellant was that she agreed to assist in the importation by posting legitimate items to two drop point addresses that Mr Brown had arranged in advance in order to legitimise those addresses. In the event his parcels were sent to different addresses, although one of those addresses was the post office box related to one of the initial (physical) addresses that Mr Brown had set up.
The appellant came to the attention of the police in the following way. On 22 May 2000, five days prior to his departure from New Zealand, Mr Brown posted a letter addressed to the appellant, at Auckland, by courier post. That letter contained details of the plan for the importation of ecstasy and a request that the appellant post agreed packages to two specified addresses, one in Christchurch and one in North Canterbury. It also suggested that the appellant would receive 15 percent of the ecstasy. As the letter was insufficiently addressed it was eventually opened by the Post Office who, given its contents, referred it on to the police. The police copied the letter and then re-introduced the original into the mail system. Recurring problems with its delivery meant that the appellant did not receive the letter until 1 June 2000, around the time that the two parcels of ecstasy were posted in Amsterdam.
On or about 5 June 2000 the appellant carried out Mr Brown’s request and posted the mail to the designated addresses. It is common ground that this took place after the drugs had been posted in Amsterdam to addresses different from those designated in Mr Brown’s letter to the appellant.
The police then interviewed the appellant. That interview revealed that Mr Brown was a close friend of the appellant who had helped her out in earlier years, that he had sent her a cellphone for communicating with him, that during the course of a telephone conversation he had told her of his plan to import ecstasy and that he had vaguely outlined what he wanted her to do. She said that she noted his requests in her diary regarding posting mail to two specified addresses. In the interview she also said that she agreed to do that but that she “wasn’t really happy about it”. The appellant elected not to give evidence at her subsequent trial.
At the trial the Crown opened its case emphasising the letter of 22 May 2000 and the appellant’s subsequent actions as demonstrating agreement to participate in the importation. Defence counsel applied to have the appellant discharged on the ground that there was no evidence of any communication between Mr Brown and the appellant subsequent to the letter and before his leaving the country. Therefore the Crown’s approach was not sustainable as any conspiracy established on the basis of the letter would be after the commission of the substantive crime. The appellant could not have conspired to participate in something that had already happened: R v Richards (1992) 9 CRNZ 403. This led the Crown to shift its ground to focus more on the contents of the appellant’s interview statements with particular reference to her account of conversations with Mr Brown prior to his departure.
The trial Judge refused the s347 discharge on the basis that there was sufficient evidence to demonstrate the kind of agreement necessary to form a conspiracy. He held that there was sufficient evidence for a jury to conclude that an agreement was reached prior to Mr Brown’s departure and that the appellant’s postages were made consequent upon that agreement in furtherance of the importation. On the issue whether the appellant’s level of participation was no more than peripheral the Judge took the view that whether the addresses set up were in fact used was beside the point. There was sufficient evidence to invite an inference of an agreement by the appellant with Mr Brown to participate in the importation. The jury eventually must have drawn that inference.
In support of the appeal against conviction Mr Hall first submitted that the Crown’s change of focus during the course of the trial was unfair to the appellant so as to amount to a miscarriage of justice. Secondly, he submitted that the conviction was against the weight of evidence. In a related submission he argued that the appellant’s involvement was insufficient to satisfy the test for conspiracy.
We do not consider that the change in focus in the way in which the Crown case was put amounts to a miscarriage of justice.
The evidence included that of the appellant’s statement to the police on interview. That was available for the jury to assess and to accept as probative of an agreement to assist and was open to cross-examination. That this aspect of the evidence assumed greater significance in the trial does not give rise to any unfairness or prejudice. The whole of the evidence, including the interview and the letter, was presented to establish an agreement. That was intended at the start of the trial and was no different at the end.
The second ground of appeal, in effect that the verdict is unreasonable and cannot be supported by the evidence (s385(1)(a) Crimes Act 1961), must also be rejected. It was submitted that analysis of the evidence of the appellant’s statements at interview to Detective Constable Cotton does not clearly establish an agreement reached with Mr Brown prior to receipt of the letter. Without necessarily accepting that the Crown could not have succeeded unless it proved that, we are satisfied that there was ample basis on which the jury could find such an agreement.
In questions and answers plainly directed to the telephone discussion with Mr Brown prior to receipt of the letter the evidence was:
Q. Did he discuss the drugs or money with you then?
A.He vaguely outlined what he wanted me to do, I wrote it down in the back of my student diary what he wanted me to do, he wanted me to post some parcels and letters to different addresses.
Q.And you agreed to do that?
A.Yep, I wasn’t really happy about it and spoke to Star about it, and I said Barrington wanted me to do some stuff. He wasn’t happy and I did it against my better judgment.
Q.So in the phone call did Barrington outline about bringing drugs into New Zealand?
A.Yeah.
Q.What sort of drugs?
A.Ecstasy.
Q.Did you discuss what you would get for it?
A.No we didn’t discuss it, he had a vague idea about what I would get out of it. There was no talking him out of it. I didn’t think he’d do it. He goes off on tangents and I thought it was surreal.
Q.You said he had a vague idea, did he tell you what you were going to get for your part?
A.He talked about it in percentage and I didn’t pay much attention because I wasn’t happy. It could have meant money I thought that’s what he meant.
Q.So you agreed to send the parcels and letters down to Christchurch?
A.Yeah.
Q.What was it he wanted you to send?
A.He wanted video cassettes sent to a place in Ferry Road labelled film stock, he’d set up a company and he wanted it to look legitimate.
It was for the jury to assess that evidence in light of the letter and what subsequently occurred. We think the Judge put the matter correctly in ruling on the s347 application as follows:
… together with what Greenfield said on interview regarding her conversations with Brown prior to his leaving New Zealand, there is, in my assessment, evidence on which a properly directed jury could conclude that a conspiracy had been formed, and that the contents of the letter and (depending upon the view the jury takes) Greenfield’s actions consequent upon it are capable of supporting the Crown’s contention. It very much depends upon what the jury make of Greenfield’s interview statement and what inferences they draw from it. Given that she ultimately made the postages to the addresses she noted in her diary, the jury could conclude that she did so consequent upon an arrangement entered into with Brown before he left New Zealand, and that is the reason she wrote them down.
The third ground of appeal was that the appellant’s involvement was insufficient to satisfy the conspiracy test. It was submitted that the proper charge, if any, was that of being an accessory to the importation and that there was no proof to satisfy the fourth element of the offence of conspiracy formulated by Fisher J in Richards p413 as follows:
(d)That the assent of the accused and of at least one of the other alleged conspirators included either an intentional promise actively to assist or was, and was intended to be, of real consequence in the sense that it made the ultimate commission of the object crime more likely. It could have the latter effect, for example, if the withholding of consent could have impeded the project or if the effect of the assent would be to encourage the others in an influential and continuing way.
Dicta from previous judgments are not to be applied in the manner of statutes as applicable in all circumstances, but in the present case there has been no issue taken with this formulation. The Judge directed the jury in these terms:
Finally, what is necessary is that each accused is proved to have knowingly, intentionally and willingly joined in an agreement to play a real and not insignificant part in committing the crime, and thus made the committing of the crime more likely. The joining can be at the time the agreement was first made or later.
That was unobjectionable.
In his letter to the appellant, Mr Brown said:
I intend if all goes well, (which it will cause I can FEEL it baby) to give you 15% of all pills that come in. I would like to give Star 10% because none of this would be possible if not 4 you guys.
Arranging apparently legitimate mail deliveries to the specified addresses prior to the arrival of the drugs (which was all that the appellant agreed to do) plainly was regarded by Mr Brown as of importance at the time. It was open to the jury to conclude that the appellant had agreed to play a not insignificant part in the proposed crime. That subsequently Mr Brown addressed his packages differently does not detract from that. The essence of the conspiracy is an agreement to pursue a course of conduct which, if carried out, would amount to or involve the commission of an offence by one or more of the parties to the agreement. See R v Cutherbertson [1980] 2 All ER 401, 403. The offence turns on an agreement and does not necessitate any further involvement in the commission of the crime. The conspiracy is complete once the agreement has been made. We are satisfied there was sufficient evidence for the jury to conclude that the appellant’s assistance met the threshold required to constitute participation in the conspiracy. This ground of appeal must also fail.
The appeal against conviction is therefore dismissed.
There is the appeal also against the sentence of 18 months imprisonment on the ground that it is manifestly excessive in the circumstances and should have been suspended. If not, it was said, the Judge should have invoked s78(2) of the Criminal Justice Act and granted bail until the Prisons Board had considered the home detention application. We have been advised that the Prisons Board has since granted home detention and the appellant is now serving the balance of her sentence at home in Dunedin.
Mr Hall told us that the appellant’s present circumstances and the lapse of time make it now inappropriate to seek the alternative sentence, invited at the time, of a suspended sentence and community service.
We have considered the sentence imposed. Given that the offence was of conspiracy only and that the steps the appellant agreed to take were at the margin, we might not have interfered with a more lenient sentence given the appellant’s personal circumstances – she was breast feeding a second child at the time. But we are not able to say that the sentence imposed was not within the range open to the sentencing Judge. Perhaps naively, the appellant agreed to assist what was intended to be a very substantial importation of a class B drug.
The appeal against sentence also is dismissed.
Solicitors
Crown Law Office, Wellington
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