The Queen v Hutson

[2007] NZCA 194

IN THE COURT OF APPEAL OF NEW ZEALAND

CA401/06
[2007] NZCA 194

THE QUEEN

v

GWENDA IRENE HUTSON

Hearing:16 April 2007

Court:William Young P, Potter and Fogarty JJ

Counsel:S J Bonnar for Appellant

M F Laracy for the Crown

Judgment:16 May 2007 at 2pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1]       The appellant appeals her conviction and sentence on one count of importing the Class B controlled drug, ecstasy.  Two points are advanced in support of the appeal against conviction:

(a)That the verdict was unreasonable or cannot be supported having regard to the evidence; and

(b)That the learned trial Judge failed to adequately direct the jury as to the onus being on the Crown to disprove any disassociation by the appellant from any earlier agreement to commit the unlawful act of importation (if the jury were satisfied that there was any such prior agreement). 

[2]       The appeal against sentence is advanced on the basis that the sentence of seven and a half years imprisonment is manifestly excessive.

Whether the verdict was unreasonable or cannot be supported having regard to the evidence

[3]       The appellant was convicted on one charge of importing the Class B controlled drug MDMA (ecstasy) into New Zealand on 24 June 2003.  The appellant was named as a party to the importation, along with Anthony Munnings and Cindy Zurowski.

[4]       Hutson and Munnings had travelled at the same time from Australia to New Zealand, onto Frankfurt and back to New Zealand.  Using different airlines Hutson and Munnings left Brisbane on 17 June flying to Auckland.  The next day, flying on the same flight but seated separately, they flew out to Frankfurt.  Five days later they returned to Auckland.  Munnings’ baggage was searched by Customs and approximately 15,800 ecstasy tablets were located in his baggage.  He pleaded guilty to importation at an early stage. 

[5]       Zurowski is alleged to have made practical arrangements to facilitate the importation process, in particular the flight and accommodation bookings of Hutson and Munnings from Auckland to Frankfurt and back and their hotel accommodation in Auckland.  She is awaiting trial. 

[6]       The trial Judge summed up on the basis that it was the Crown case that Hutson was an overseer:

[Crown] Counsel likened the evidence to a jigsaw puzzle, and invited you to consider ten pieces, among others, of that puzzle in the light of what Detective Sergeant Souter said about how drug importation often occurs.  You have your courier, your mule, as it were.  You have a person who operates as an overseer to make sure firstly that the courier doesn’t rip off the drugs for their own use, although that doesn’t seem to be suggested here.  Or to advise people further up and down the chain in the event that the courier is apprehended by the authorities.  It is not uncommon, indeed it is common for the overseer to disassociate themselves completely from the courier, in this case it did not happen, but that is not unknown.

[7]       The ten pieces of evidence emphasised by the Crown were, in summary:

(i)Munnings was not a one man band.  This was an operation on a large scale, about $1.5 million worth of pills being imported.

(ii)Munnings and Hutson had a close relationship.  He had been her boyfriend for three and a half to four years, and she must have been aware of the purpose of this trip to Germany via New Zealand. 

(iii)She lied to the police in her statement, when denying knowledge of Munnings, but acknowledging knowing a Mr Bousserio.  She must have known he went by the name of Munnings, even if at some stage he used the name Bousserio.

(iv)The trip to Frankfurt could not have been a holiday which is what the appellant claimed in remarks she made to the police.  They spent $5,000 on tickets.  They stayed there 81 hours.  It was not a holiday.  It was a drug run.

(v)When Hutson’s hotel room was searched, on her return to New Zealand, nothing was found to verify any holiday trip.

(vi)They both left Brisbane on the same day but on separate flights.  Why?   To distance Hutson from Munnings. 

(vii)Their departure cards from Brisbane and arrival cards in New Zealand have them staying at different hotels: Quest for Munnings and Heritage for Hutson.  In fact they both stayed at the Kiwi Hotel.

(viii)The bookings for Munnings and Hutson from Auckland to Frankfurt and return were made by Zurowski under a false name, using two different flight centres, on different days, and paying cash.

(ix)Their accommodation in Auckland, upon return, was booked while they were in Frankfurt by locally made phone calls to the New President Hotel: one from a pay phone near the Queen Street Flight Centre; the other from a pay phone near the Ponsonby Flight Centre.  It is likely both bookings were made by Zurowski. 

(x)As they came through Customs in Auckland upon return from Frankfurt, Munnings went through Lane 8 at 11.03 am.  Hutson went through the same lane at 11.06 am, close behind but not right next to Munnings and thus was able to see whether he was apprehended. 

[8]       Mr Bonnar, for the appellant, submitted that there was insufficient evidence upon which the jury could convict. 

[9]       Section 385(1)(a) of the Crimes Act 1961 provides:

385  Determination of appeals in ordinary cases

…

(1)  On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—

(a)  That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

[10]     In R v Ramage [1985] 1 NZLR 392, Somers J said (at 393):

A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury… .

[11]     Mr Bonnar developed his argument, taking into account the problems with the appellant’s lies, on the one hand, and putting her statement completely to one side.  He submitted the evidence adduced by the Crown in essence proved nothing more than that the two had travelled at the same time.  He emphasised there was no proof the appellant had done anything to assist.  He argued that the jury was invited to speculate as to what assistance, if any, she provided to the importation.

[12]     He submitted that even if there was enough evidence for the jury to infer she must have known it was a drug run, there was insufficient evidence from which the jury could be satisfied that she had participated in some way in the venture.  In respect of that second step he also submitted there were a number of pieces of evidence inconsistent with the Crown’s theory that she was an overseer.  There was no evidence that she had tipped anyone off after she had seen Munnings apprehended at the airport.  There was evidence that she and Munnings had intended to return to Australia at different times, which is inconsistent with the Crown theory that Australia was likely the ultimate destination of the drugs. 

[13]     The Crown had to prove either that the appellant acted to assist the importation (s 66(1)) or that she and Munnings (and perhaps Zurowski) had a common intention to import ecstasy, and to assist each other to do so (s 66(2)). 

[14]     Ms Laracy, for the Crown, reformulated the ten points.  Mr Bonnar set about picking them off one by one.  That was the wrong method.  It is not possible to reject a circumstantial argument by taking each fact separately and considering it in isolation.  That may be in part a legitimate argument but inevitably it is necessary to confront all the proven facts marshalled in support of an inference. 

[15]     Putting the ten pieces of evidence together we are satisfied that there was an overwhelming argument against this trip being a holiday for Hutson.  Plainly steps were taken to create two separate  paper trails of bookings.   Yet it is clear that they knew that they were travelling together.  They took adjoining rooms in Auckland on the outward leg and came through Customs together upon return.

[16]     Although the charge is not one of conspiracy, the law of conspiracy offers assistance on proof of participation or agreement in concerted action.  The classic example is of a bank robbery given by authorities such as Ahern v R (1988) 165 CLR 87 at 93-94. One can take a bird’s eye view of participants of a bank robbery, and so identify that they are acting in a concerted fashion. By analogy, here the proven facts demonstrate that the conduct of Munnings, the appellant and Zurowski was concerted to the purpose of importing the drugs found on Munnings. A return trip to Frankfurt, within those few days, is an endurance. Mr Bonnar submitted that the trip itself could have been done just for the pleasure of it by his client. The jury were quite entitled to reject that notion as fanciful, if it was put in the closing address. Mr Bonnar was not trial counsel.

[17]     We are satisfied that there was an adequate evidential basis for the verdict.

Was there any failure to adequately direct the jury as to the onus being on the Crown to disprove any disassociation by the appellant from any earlier agreement to commit the unlawful act of importation?

[18]     As part of the summing up the Judge said:

However it is possible, of course, if you are part of an agreement of this sort, to withdraw from it, to disassociate yourself from it at some point before the agreement is brought to fruition.  You may remember Ms Hutson’s statement to the Police that she had a falling out with this person who she described as Mr Bisario [sic], and said she is going to go off on this holiday to Frankfurt on her own, or go her own way.  They travelled, she says I think, separately, or at least not sitting together in the same seats. 

The question for you to decide is if this was as alleged by the Crown, did Ms Hutson at any time disassociate herself from it?  If Mr Bisario [sic] is in fact Mr Munnings.  So that is just another matter for you to consider.

[19]     Mr Bonnar agreed that it was unlikely that defence counsel would have closed on the proposition that Hutson had been part of an agreement but had disassociated herself from it.  Such a defence would be completely inconsistent with her statement. 

[20]     Nonetheless, the Judge having directed upon it, the point was advanced by Mr Bonnar that the Judge had failed to direct the jury that the onus was on the Crown to disprove any disassociation.

[21]     As Ms Laracy for the Crown pointed out, that burden only falls upon the Crown if there is some evidence of withdrawal.  There is evidence from the appellant’s statement, if accepted, of a falling out between herself and Munnings over another woman.  But there was, however, no evidence before the jury of withdrawal from a common plan to import ecstasy. 

[22]     It was not necessary for the Judge to have raised a question as to evidence of withdrawal.  However, having directed the jury on disassociation, it would have been better had the Judge redirected on onus and standard of proof.  Nonetheless, the general directions, previously given, adequately covered the issue.

Sentence

[23]     Mr Bonnar argued that the Judge appears to have simply approached sentencing on the basis of the sentence imposed upon Munnings and upon the appellant following the first trial, which conviction and sentence had been set aside upon appeal.  From that original sentence of eight years imprisonment for both, the Judge referred to more up-to-date material and adjusted the sentence to seven and a half years imprisonment.

[24]     The trial Judge rejected the defence submission that the appellant’s role was to do no more than encourage the principal offender.  The Judge was quite entitled to sentence the appellant as he did, on the grounds that while one of her purposes may have been to encourage the principal offender, all the evidence points to her involvement as being far more actively engaged in the importation than simply that of encouragement.  This Court has already justified a ten year starting point in Munnings’ case (R v Munnings CA390/04 9 March 2005).  We are satisfied that the final sentence in this case of seven and a half years is not only well within the available range given the seriousness of this offending but represents a generous 25% reduction from the starting point solely on account of personal factors.  There is no basis for any further reduction.  The appeal against sentence is dismissed.  

Solicitors:
Crown Law Office, Wellington