The Queen v Quinlan

[2006] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/05

THE QUEEN

v

RYAN BRADLEY QUINLAN

Hearing:2 August and 6 November 2006

Court:Chambers, O'Regan and Ellen France JJ

Counsel:R M Mansfield for Appellant

B J Horsley for Crown

Judgment:4 December 2006 at 12 pm

JUDGMENT OF THE COURT

A        The appeals against conviction and sentence are dismissed.

BThe interim suppression order preventing publication of these proceedings is lifted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       After a trial in the High Court at Auckland, the appellant was convicted on 23 November 2004 of one charge of possession of a class B controlled drug, MDMA (“ecstasy”), for supply and of one charge of conspiracy with others to export ecstasy from New Zealand.

[2]       On 14 February 2005, the appellant was sentenced by the trial Judge, Laurenson J, to a term of seven years six months imprisonment with a minimum period of imprisonment of three years nine months.  The appellant appeals against his conviction and sentence.

Factual background

[3]       On 25 September 2003, New Zealand Customs Services officers intercepted Yoav Erenstein at Auckland International Airport.  Mr Erenstein was found to be carrying four packets each with 750 grams of MDMA powder.  Mr Erenstein admitted that he was a courier for the drugs, and co-operated fully with police.

[4]       The powder was 77‑78% pure MDMA.  The total weight of the MDMA was 2.3 kilograms which was sufficient to produce about 25,300 tablets of ecstasy with an estimated street value of between $2-2.5 million.

[5]       Mr Erenstein had been given a number in Holland to call once he had cleared Customs.  Calling the number, Mr Erenstein spoke to a Mr Kadosh and confirmed he had arrived safely with the drugs.  Through a series of phone calls, it was arranged that Mr Kadosh would come to New Zealand to collect the drugs.

[6]       On 1 October 2003 Mr Kadosh arrived in Auckland and was arrested for carrying some 25 grams of hashish.  During the time of his arrest and subsequent bail, it appears that unknown persons behind the scenes made different arrangements to get the MDMA moved from New Zealand to Australia.

[7]       Around 1 October 2003, the appellant was contacted in Sydney, Australia, by an unknown person who identified himself as Sean.  Sean asked the appellant to travel to New Zealand.  The appellant was to receive $1,500 to cover travel and other expenses.

[8]       Arriving in Auckland and having made contact with Mr Kadosh, the appellant met with Mr Erenstein in Murphy’s Bar on Queen Street.  Mr Erenstein handed over one of the packages.  The Police had substituted a lesser amount of MDMA in this package. Without the police intervention, the Crown case was that the 750 grams of powder originally in the package would have provided 575 grams of pure MDMA powder.  The appellant left Mr Erenstein and went by taxi to Karangahape Road where he was arrested.

[9]       The Crown’s case was that the appellant was to meet Mr Erenstein and take the drugs back to Australia.  The appellant’s case was that he was to pick up a sum of money from Mr Erenstein that he would then deliver to Karangahape Road.

Grounds of appeal

[10]     Three matters are raised in the conviction appeal:

(a)Senior trial counsel made a number of errors which have alone or in combination resulted in a miscarriage of justice.  In particular, it is said, first, that senior trial counsel was not prepared for trial and had not taken a brief from the appellant; second, the conduct of senior trial counsel may have resulted in the jury being prejudiced against the appellant; and, third, senior trial counsel failed to follow instructions by not investigating, briefing and/or calling relevant witnesses.

(b)The evidence of Dr Guillemin is new evidence which is available for the appellant.

(c)There was no evidence to support the conviction of conspiracy to export.

[11]     In terms of the sentence appeal, it is submitted that the sentence was manifestly excessive primarily because the starting point adopted was manifestly excessive.  There is also a challenge based on parity with one of the co-offenders.  Finally, it is submitted that the offending did not warrant a minimum period of imprisonment. 

Trial counsel error

[12]     We heard evidence from the appellant.  We also heard from Chris Harder, senior defence counsel at trial, and from Mr Harder’s junior, Anthony Trenwith.  There was considerable focus in that context on senior counsel’s evidence that the appellant made an admission to him in the course of the trial and on the appellant’s denial that he did so.  A report was sought and obtained under r 17 of the Court of Appeal (Criminal) Rules 2001 from the trial Judge because this evidence raised an issue about what had transpired at a meeting between senior defence counsel and the Judge in the course of the trial.

[13]     However, as matters have developed, it is not necessary for us to reach any conclusion on this factual dispute.  That is because, although a number of matters were raised initially under the umbrella of trial counsel incompetence, the issues have been narrowed considerably.  The appellant sought leave to adduce an affidavit from Gregor Morison, a barrister who was consulted informally by the appellant before and during the trial, and who was present in court for parts of the trial.  This evidence was said to support some of the appellant’s allegations against senior trial counsel.  However, Mr Morison’s evidence does not bear on the matters which are now in issue.  Although we agreed to receive Mr Morison’s affidavit, it has not been necessary to deal with that evidence or other evidence about trial preparation. 

[14]     The appellant accepts that despite his complaints about matters such as the inadequacy of senior counsel’s preparation, the absence of a written brief of his evidence, and the fact that his evidence was led by junior counsel, he was able to say what he wanted to say in his evidence and his case was accurately put in the Judge’s summing up.  This is a proper acknowledgement.  The appellant’s evidence does appear to have been led competently and the appellant has not been able to point to anything which he wanted to say but was not able to say.  Nor is there anything to support a claim that senior trial counsel’s conduct in court has given rise to a miscarriage. The complaint now comes down to two matters.

[15]     First, the appellant says that senior counsel erred in cross-examining Crown witnesses about smuggling money out of New Zealand.  The criticism is that this raised a theory about the exporting of money which was inconsistent with the appellant’s instructions and with his case.

[16]     Second, the appellant submits that senior counsel should have cross‑examined Mr Erenstein further about what was said in the conversation with the appellant in Murphy’s Bar.  We take each in turn.

(i)       Cross-examination about smuggling money

[17]     The appellant’s instructions were that he was asked by an associate of a friend in Australia to travel to New Zealand to pick up a package from another person.   He was to deliver the package to another person in New Zealand and had a mobile telephone number given to him for that.  He believed the package contained money and did not know that it was drugs.  He denied that he was going to export the package but said he had to take it from one part of Auckland (Queen Street) to another (Karangahape Road).

[18]     Senior counsel accepts that those were the instructions he received.  Against that background, the criticism is that without instructions to that effect, senior counsel cross-examined a number of Crown witnesses about the smuggling and export of money.  For example one of the customs officers was asked about the type of valuable items the officer had experienced people trying to smuggle in and out of New Zealand.  The officer replied that apart from drugs, attempts were made to smuggle jewellery and cash.  Similar questions were put to other Crown witnesses.  The argument is that this line of questioning would have been detrimental to the appellant’s argument that he was an innocent dupe and detrimental to the credibility of his account that he was not taking the package out of New Zealand.

[19]     The evidence from senior counsel before us was that the appellant “knew we were trying to get money in as many times as we could”.  His explanation for the line of questioning was that it was a strategy to raise the possibility of an illegal trade in money which would bolster the appellant’s account.  He accepted his thinking was along the lines that:

[The appellant] might have been involved in some skulduggery but it wasn’t, or he didn’t realise it was drugs, he might have thought it was something fishy just concerning money …

[20]       We do not consider the approach taken has given rise to any miscarriage.  In the context of the trial it was a possible strategy to seek to introduce the notion of some sort of illegal trade in money before the appellant took the stand and explained that he believed there was money in the package.  The defence case was not a strong one.  As the trial Judge put it in sentencing at [42]:

His explanation that he had agreed to come to New Zealand for the sole purpose of receiving an amount of money from a stranger, and then to deliver it to another person in Auckland only a short distance away for the sum of $1,500, … made no sense …

[21]     In this context, experienced counsel made an assessment about an approach that might bolster the defence case.  We do not believe it would have undermined that case in any way.

(ii)       Cross-examination of Mr Erenstein

[22]     Mr Erenstein’s evidence was that he and the appellant had a general conversation in Murphy’s Bar.  When asked what was discussed about the drugs, he said:  “I told him that the backpack had 750 grams and I asked for the money in return.”  The appellant is critical of the failure to put to Mr Erenstein that he did not say that to the appellant.  There is also a criticism, although not pressed, that counsel did not put to Mr Erenstein that he said 750 “grand”, not “grams”.

[23]     Senior counsel told us he believed that it was sufficient to have raised with Mr Erenstein the difficulty of hearing what was said in the bar and the likelihood of confusion about that.  We agree.

[24]     It is necessary to refer to the evidence.  Mr Erenstein was asked by defence counsel whether he accepted he had “quite an accent”.  Mr Erenstein said yes and accepted that it was “not too hard to misunderstand something” that he said.  In fact, the tape of the conversation was so difficult to hear that another set of equipment was obtained and the tape replayed along with evidence from Detective Holmes who had prepared the transcription of the tape.  Prior to the recall of Detective Holmes, the Judge directed the jury about the hearing difficulties.

[25]     Importantly for these purposes, the appellant’s evidence about the conversation was equivocal.  In evidence in chief he was referred to what Mr Erenstein said about what was in the backpack.  The appellant said:  “I did not hear this I don’t believe he even said it.”  Subsequently, he explained that it was just difficult understanding what they were each saying and the music and surroundings were quite loud.  He also said it was “more [Erenstein’s] accent” which he just “couldn’t understand”.  In cross-examination, when asked about saying “Yeah, yeah” after Mr Erenstein had said “750 grams”, the appellant explained that he might have said “yeah, yeah, yeah” because that was what you say “when you’re misunderstanding someone you don’t want to be rude you just say yeah”.  He said that he did not understand Mr Erenstein at that point to be telling him what was in the bag.

[26]     When pressed further about what he had understood, the appellant maintained that he did not know what Mr Erenstein was talking about “half the time”. 

[27]     It was difficult to try to run effectively two lines, one, that Mr Erenstein had not said anything and, secondly, that the appellant had misunderstood what was said.  Certainly, there was no evidential foundation for putting a question to Mr Erenstein about having said “grand” rather than “grams”.  The appellant never said that was what was said.  Instead, it suited the defence to be able to raise that by way of a submission having established the problems in hearing what was said.

[28]     A decision was made to work on creating a climate about the difficulty of hearing.  That was the most that could have been achieved in the circumstances.  It appears that nothing was said in closing about the failure to put either matter to Mr Erenstein and there was certainly nothing about this aspect in the summing up.  Both in the context of playing the tape and in summing up, the Judge emphasised the need for caution given the difficulties of hearing the tape.  There has been no miscarriage from the line taken here. 

[29]     In terms of R v Sungsuwan [2006] 1 NZLR 730 we have also looked at the matter overall and considered whether any miscarriage has occurred. In our view the appellant’s defence was put adequately and there has been no miscarriage of justice.

[30]     There are a number of aspects of this case which appear to raise ethical issues about the conduct of senior counsel.  Those issues are not before us because the focus of the appeal is on whether or not there has been a miscarriage of justice.  For the reasons given, we are satisfied there has been no miscarriage of justice. We however want to make it plain that we are not endorsing the ethics of what was done.

New evidence

[31]     The further evidence the appellant seeks to have the Court consider relates to the discussion which took place in Murphy’s Bar between the appellant and Yoav Erenstein.  To this end, the appellant has provided a report from Dr Bernard Guillemin.  Dr Guillemin has tertiary qualifications in Electrical and Electronic Engineering including a PhD in the area of speech analysis.  He has acted for a number of years as an expert witness in speech analysis, speech recognition, speaker identification and speaker verification.  Dr Guillemin examined the CD‑Rom recording of the conversation in the bar.  He also considered the Police transcript of a part of that recording. 

[32]     Dr Guillemin observes that the quality of the recording is very poor and the participants were clearly having difficulty hearing each other correctly.  Given this, Dr Guillemin opines that the Police transcript is “reasonably accurate” in places although there are aspects where his transcript is more complete in that there are fewer gaps representing words or phrases that still remain unintelligible.  His opinion is though that no transcript is ever likely to be 100% correct because of the very poor quality of the recording.

[33]     On the key aspect, that is, whether the words were “750 grams” or “750 grand”, Dr Guillemin says as follows:

I still can’t say with any degree of certainty who spoke the two words at Tape Ref. 18:08 i.e, the words “750 …” or what the second word in this utterance is.  The Police transcript has the words “750 grams” at this point in the conversation, but it is also possible that the utterance “750 grand” was spoken.

In my transcript I have recorded it as “750 grams” and attributed it to [the appellant], which is my best guess based upon what I hear and what seems to make sense in terms of the conversation as transcribed.  But I acknowledge that I cannot be certain about this.  Noting again that the participants themselves were having trouble hearing each other clearly during the conversation because of the large amount of background noise present, it is doubtful, in my opinion, whether this uncertainty can be satisfactorily resolved from the recordings.

[34]     The appellant’s argument is that there was a clear factual dispute at trial over what was said and that Dr Guillemin’s report would have been important corroborative evidence at trial.  It would have challenged the evidence of the Crown’s expert, Detective Holmes, who prepared the transcript and would have supported the appellant’s account.

[35]     Assuming that the report is both sufficiently fresh and credible in terms of the test in R v Bain [2004] 1 NZLR 638 at [22] and [23], we are satisfied there is no risk that a miscarriage of justice has occurred because this evidence was not before the jury. In our view, it is highly doubtful that the evidence would have helped at all. Dr Guillemin’s “best guess” is that what was said was 750 “grams” and he also attributes that comment to the appellant which would have been unhelpful.

[36]     At best, Dr Guillemin’s evidence would have confirmed there was uncertainty about what was said, a fact that that was very clearly before the jury.

Evidence of a conspiracy to export

[37]     The Crown case relied on the jury drawing the inference from the circumstances of this case that the appellant’s purpose in going to New Zealand was to further an agreement to bring the drugs back to Australia.  The respondent says that once the jury had found the appellant knew that the package contained drugs, that inference was clearly available when considered in combination with the evidence that the appellant was acting with someone else.  We agree.

Sentence appeal

[38]     By reference to various authorities, the appellant says the starting point of nine years adopted by the Judge was too high.  An initial submission that insufficient credit was given for the mitigating factors was not pursued, it being accepted that the discount was sufficient.  The appellant also makes an argument about the starting point based on parity with the co-offender, Mr Erenstein.

[39]     Laurenson J sentenced the appellant on the basis that the amount of the drug involved was 575 grams of pure MDMA.  But, for the conspiracy charge, the Judge treated the amount involved as 1,500 grams.

[40]     The Judge in reaching the starting point of nine years imprisonment saw as aggravating features the fact that the offending was premeditated and involved a large amount of drugs.  Laurenson J assessed the offending as within category 1 of R v Wallace and Christie [1999] 3 NZLR 159 (starting points in the range of eight to fourteen years for commercial activity on a major scale).

[41]     This plainly was offending within category 1 of Wallace and Christie.  On the best approach for the appellant, he allowed himself to become involved in the movement of drugs with an estimated street value of between $1 million and $1.25 million.

[42]     Further, a consideration of the authorities relied on by the appellant shows the nine year starting point was within the available range.  For example, in R v Hui (2003) 20 CRNZ 297 a sentence of nine and a half years imprisonment and a minimum period of imprisonment of five and a half years was quashed and a sentence of seven years with a minimum period of imprisonment of three years was substituted.  The appellant in that case was “importuned” by drug smugglers to bring a package of ecstasy into New Zealand.  The appellant and his co-offender were found with nearly 20,000 ecstasy tablets with a street value of between $1.2 and $1.6 million.  This Court on appeal said the starting point of 12 years adopted was too high and a starting point in the range of eight to ten years would have been appropriate.  The appellant in that case had pleaded guilty.

[43]     Finally, in terms of the starting point, we see no merit in the argument based on parity.  The question of parity was considered by the Judge who observed that the starting point adopted for Mr Erenstein was 10 years and for Mr Kadosh 11 years.  Mr Kadosh was seen as having the greater culpability of the three as he was the overseer.

[44]     There can be no realistic suggestion that there is a disparity in the approach taken.  The lesser effective sentence for Mr Erenstein reflects the significant mitigating features of his case.

[45]     In terms of the minimum period of imprisonment, the test adopted by the Judge was whether the circumstances of the offending are sufficiently serious to justify a minimum term. (This test is based on s 86 of the Sentencing Act 2002 as it was prior to amendment in 2004 and there was no suggestion to us that the amended s 86 should apply.)

[46]     In imposing a minimum term, Laurenson J referred to a “clear judicial acceptance that, in cases such as this, the need to provide an effective deterrence warrants the conclusion that the circumstances in such cases are to be regarded as taking the offending out of the ordinary range …”.  The Judge considered that the quantities involved in this case were a proper basis for this conclusion.

[47]     The appellant says the Judge has erred in the approach to s 86.  The appellant also raises an argument based on parity with Mr Erenstein who did not receive a minimum term.

[48]     The approach to s 86 in similar situations was discussed by this Court in R v Wong and Cheng CA387/02, CA379/02 25 March 2003.  The “central question” identified there at [20] was culpability.  The level of culpability had to be such that the offending was so serious that release after one third would “plainly constitute an insufficient response” (at [19] with reference to R v Brown [2002] 3 NZLR 670).

[49]     Further, in R v Davis; R v Collinson CA440/04, CA13/05 20 October 2005, this Court rejected the suggestion that had been made in some High Court decisions that couriers were unlikely to come within s 86.  The Court there said at [90] that s 86 required a “fact-specific assessment having regard to the scale of the operation, the involvement of the particular person and their knowledge of the totality of what is occurring.”

[50]     The Judge in this case took the view that the quantities involved took the appellant’s culpability into the category of offending for which a minimum period was necessary and that the discretion should be exercised to impose a minimum period.  We consider that conclusion was one open to the Judge in the exercise of his discretion.  While the appellant’s involvement was not central, he played an important part in the conspiracy to export a significant quantity of the drug. 

[51]     We do not see any issue arising out of parity with Mr Erenstein’s sentence.  The appellant relied on R v Davis; R v Collinson for the proposition that the imposition of a minimum period for one offender raised an issue of parity where the co-offender’s level of co-operation was identified as a feature militating against the imposition of a minimum term.  However, it must be relevant in assessing the relative culpability of the appellant and Mr Erenstein that the latter co-operated and extensively assisted the authorities.

Suppression

[52]     At the conclusion of the hearing on 2 August, we made an interim order suppressing publication of these proceedings because of a concern about the effect of publicity of some of the evidence on another trial.  That concern is no longer live because the trial has been concluded.  The suppression order accordingly ceases.

Result

[53]     For these reasons, the appeals against conviction and sentence are dismissed.    The interim suppression order ceases.

Solicitors:

Crown Law Office, Wellington