The Queen v Smith

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 103/00

THE QUEEN

MALCOLM STANLEY SMITH

Hearing:	13 June 2000
Coram:	Richardson P Gault J Keith J Blanchard J Tipping J
Appearances:	M S Gibson and A M Ives for Appellant J C Pike and B D Vanderkolk for Crown
Judgment:	26 June 2000

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

Following a two week trial Malcolm Stanley Smith was found guilty by a jury on 23 drug charges and was sentenced to 12 years imprisonment. He appeals against his convictions on 19 of the counts and against the 12 year sentence imposed by the High Court.
The crucial question on the appeal against conviction is whether the deployment of a Police informer and the use of a video camera strapped to his body when purchasing drugs from the appellant constituted an abuse of process or an unreasonable search or seizure in breach of s21 of the Bill of Rights. A further question relating to the appellant's conviction on a representative count of supplying morphine in the form of morphine sulphate between 1 January 1990 and 19 August 1999 (count 24), on which he was sentenced to 12 years imprisonment, is whether the conviction was supportable on the evidence including the inferences properly able to be drawn from the evidence of a forensic accountant as to the appellant's accretion of assets and available legitimate income over the period.
As to sentence, it was submitted for the appellant that the sentence of 12 years imprisonment was manifestly excessive in all the circumstances.

Background

The appellant, a former pharmacist, was sentenced in 1979 to 9 years imprisonment on various Class A drug charges. Over the period 1990 to 1999 he lived in his own house at 173 Featherston Street, Palmerston North.
Brian Bright was 40 years old at the time of trial. At the time he met the appellant in 1989 or 1990 he had been an intravenous drug user for many years. He became friendly with the appellant. He said he bought temgesics and morphine sulphate pills from the appellant and from other sources until he left for Germany in March 1993. His evidence was that the appellant was worried that the house was bugged and in consequence discussions about drug purchases took place outside the house.
Stuart Perkins, also a long-term user of drugs, described purchasing morphine sulphate tablets from the appellant on 20 to 30 occasions over a period of 5 or 6 months between August 1998 and February 1999 and being supplied by the appellant with acetyl chloride which Mr Perkins then used to convert the morphine to heroin at the appellant's house. Those transactions were the subject of two convictions on which the appellant is not appealing. When he was there, Mr Perkins saw the appellant supply the tablets to other callers at the premises, often in exchange for jewellery, cassettes, clothes and other articles. Mr Perkins also said that the purchasing was by hand signals because the appellant said he was quite sure that the house was bugged or under surveillance. But later in his oral evidence at Mr Smith's trial he said there were discussions inside the house about the supply of morphine sulphate tablets.
Mr Bright returned to New Zealand from Australia on 31 December 1998. At his request the appellant paid for his airfare that of his partner. Mr Bright described visiting the appellant at 173 Featherston Street and seeing drug dealing going on in a large way and morphine sulphate tablets being processed there into heroin.
Around late January he and his partner moved into 173 Featherston Street at the invitation of the appellant. They were using drugs. Before they moved Detective Sergeant Carlson, officer in charge of the Organised Crime Unit at Palmerston North, made contact with Mr Bright. Detective Sergeant Carlson was in charge of an operation targetting the appellant's activities. None of the five informants who were advising the Unit as to the appellant's activities was prepared to give evidence against the appellant. The Detective Sergeant said his reason for not deploying an under‑cover officer was that the previous convictions had been obtained against the appellant by the use of an officer and at this time the appellant would not deal to someone he did not know was an intravenous drug user.
Mr Bright agreed to provide the Police with intelligence and after assessing his suitability Detective Sergeant Carlson agreed that Mr Bright should be given $100 per week for his rent and a further $40 per month for his use of the Police supplied cellphone.
Between then and June 1999 Mr Bright provided the Organised Crime Unit with a wealth of information regarding drug dealing activities of the appellant and related criminal offending, including the receipt by the appellant of a vast range of goods stolen by drug users and received by the appellant in payment for drugs supplied. Mr Bright told the Police that the appellant did not hold large amounts of drugs at the premises. Hand signals were used for ordering of drugs at the house.
On 11 February 1999 another section of the Police, and without the knowledge of Detective Sergeant Carlson, executed a search warrant on 173 Featherston Street. Stuart Perkins was at the address, as was the appellant. Mr Perkins made a statement to the Police the same day and was later charged. So was the appellant. The Police search found in the ceiling space two phials later analysed as containing acetyl chloride, $8,000 in New Zealand currency, $2,950 in United States currency and jewellery later valued at $11,700.
Mr Bright's evidence was that the appellant thereafter restricted his purchasers from converting morphine into heroin at the address, would only deal there with a limited number of people he knew, and arranged for Mr Bright to act as a mobile courier of morphine and acetyl chloride, making visits every day to a number of houses and distributing drugs for the appellant.
Against that background Detective Sergeant Carlson decided that Mr Bright should be asked to make a number of evidential purchases of morphine sulphate and acetyl chloride from the appellant. He did so on 8 occasions, 15 June 1999, 21 June 1999, 26 July 1999, 29 July 1999, 14 August 1999, 16 August 1999, 17 August 1999 and 18 August 1999, involving morphine tablets of various strengths and prices. On the ninth and final occasion, 19 August, by pre‑arrangement and following a signal from Mr Bright when the appellant had gone up a ladder into the ceiling to get the drugs requested, Police entered and searched the house.
On each occasion Mr Bright was directed what drugs to buy and given the cash needed for the particular purchase. He was searched before going to the house. On his return to the nearby location where the Police were waiting he handed over the drugs and acetyl chloride he had acquired and made a written statement. The Police recorded the times involved. The items handed over were finger-printed with a negative result.
A further search under warrant on 7 July 1999 only revealed drug dealing utensils found in Mr Bright's room. Around that time, too, the District Court refused to grant a warrant to enter the appellant's home to splice into the appellant's security camera outside his front door, presumably because this was considered to be outside the reach of any statutory authority to do so.
On 29 July and with a view to providing support for Mr Bright's evidence, the Police secreted a body listening device on Mr Bright. Because of the appellant's practice of requiring hand signals for purchases from the appellant rather than conversation, nothing of consequence was revealed on the tape. On 14 August a small covert video camera was placed on Mr Bright for the purpose of recording the drug transaction that day. There was no audio recording. That practice was followed to make a visual record of the transactions on the remaining occasions 16 August, 17 August, 18 August and 19 August.
Apart from Mr Perkins and Mr Bright there was limited evidence of particular purchases of drugs from the appellant. But on the Crown case there was a substantial body of evidence from which the inference of extensive drug dealing could readily be drawn. Mr Bright's evidence of drug dealing from the premises in the 1990‑1993 period before Mr Bright left for Germany has been noted (para [5]). There was evidence that on 4 June 1996 the appellant purchased a BMW car, paying $43,000 in mainly $50 and $20 notes. As well, there were numerous other instances of payments of several thousand dollars in cash sums for cars, shares, and of deposits in his solicitor's trust account between March 1994 and August 1999 - the cash paid to the solicitor's trust account over that period totalling some $90,000, the largest being $25,000. Next, when Police executed a search warrant at the premises on 14 April 1998 they found four phials containing acetyl chloride or acetic acid. Mr Perkins' evidence covering the period August 1998 to February 1999 has been noted (para [6]) as has Mr Bright's evidence of numerous transactions by and for the appellant, apart from his own purchases, between February and the termination of the operation on 19 August 1999.
When Police searched the property thoroughly on 19 and 20 August they found an Aladdin's Cave of obviously stolen goods, many still with price labels, including 1,100 bottles of wine and spirits valued at $30,000 and cash sums in various places totalling some $18,000. As well, they located 125 morphine sulphate tablets of various strengths and a quantity of acetyl chloride.
The forensic accountant's financial analysis of the appellant's affairs arrived at a net assets total of $64,500 at the beginning of 1990. In contrast, the appellant had identifiable net assets of $942,800 as at 30 September 1999, which included six properties, seven motor vehicles, shares of $100,000 and $237,000 cash at the bank. The proved expenditures over the period and a modest allowance for living expenses exceeded his legitimate income and other receipts by some $820,000. In round terms that unexplained income was represented by an increase in net assets of some $880,000. There was evidence disputing some aspects of that accretion analysis but on sentencing the Judge noted that it seemed to be accepted that at least some $600,000 represented the net proceeds of trafficking in drugs. The Judge noted that was the equivalent of over 10,000 morphine sulphate tablets at $60 each.

The Judge's rulings

On a pre‑trial application the appellant sought to exclude Mr Bright's oral evidence and the video tapes, essentially for breach of s21 of the Bill of Rights and also on the ground of unfairness in the conduct of the Police.
As to s21, Mr Gibson for the appellant accepted that the Police activity in using their agent, Mr Bright, in that way was not unlawful. It was, he submitted, unreasonable. Ellis J concluded, applying the reasoning in R v Gardiner (1997) 15 CRNZ 131, that the search was reasonable in all the circumstances: the nature and reasons for the search overcame the need to protect a degree of privacy the accused would expect to enjoy in his home using it the way he was.
As to unfairness, the Judge noted that, while sending in an informer armed with a secret video camera may be unfair in the sporting sense in that it involves deceit, here the community was dealing with a very serious criminal activity widespread in its effect. And while acknowledging that Mr Bright did not have the same statutory protection as an undercover Police Officer and his evidence might not have the same weight, the Judge could see no difference in principle between the respective activities of an under‑cover officer and an informer. He continued:
Mr Gibson submitted other search powers could have been used. A search warrant under s198, or planting listening devices under the Misuse of Drugs Act could not have achieved the same results. Mr Gibson submitted the Police should not have encouraged Bright to commit offences or condoned them. Bright admits to having committed offences, but the community too will condone such if the purpose is to stop a much greater harm through the targeted offending. That seems plainly the case here. I find that the Police acted in good faith. They had good cause to suspect serious offending by Smith. They had no reasonably available means of achieving the same result. There was a measure of urgency, and I do not think the admission of Bright's evidence would bring the administration of justice into disrepute. I therefore rule that Bright's evidence, and that of the video tapes is admissible.
The Judge revisited the ruling in the course of the trial and following the voir dire. He noted that the most significant factor which emerged was that, not only did Mr Bright purchase morphine sulphate and acetyl chloride as organised and paid for by the Police, but he also acted as courier for the accused on a daily basis, delivering drugs to purchasers, receiving payment in cash and in stolen property, and as well continued to purchase drugs for his own use.
Mr Gibson's submission was that the Police's primary duty was to prevent crime, whereas in this case they encouraged it rather than discouraging it and in a situation where they already had adequate evidence to prosecute the present appellant for supply, certainly after they had raided the property on 11 February 1999 and caught Mr Perkins. Ellis J considered the criteria in s15 of the Misuse of Drugs Amendment Act 1998 as providing guidance by analogy in balancing relevant public interest considerations, namely, on the one hand that serious drug dealing be brought to successful prosecution and, on the other, the privacy interests of citizens and, he added at Mr Gibson's behest, overall fairness to an accused and the public interest in the due observance of the law by the Police in performing their functions. The Judge was readily satisfied that the Police had reasonable grounds for believing that the appellant had committed, was committing, and was about to commit drug dealing offences and that there were reasonable grounds for believing that the investigation would gain by the use of the video camera.
Turning to the three further and alternative conditions under s15, he was satisfied, first that other investigative procedures and techniques had been tried but had failed to facilitate the successful conclusion of the Police investigation of the case, referring in that regard back to his earlier ruling and to the inability of the Police to get a search warrant directed to the particular situation. Next, he considered whether other investigative procedures and techniques were unlikely to facilitate the successful conclusion of the Police investigation:
I am satisfied that because of the way sales were conducted, that is without words being spoken, investigative procedures short of eye witness accounts would be inadequate or at least would put the prosecution in jeopardy. In this case Mr Gibson quite rightly emphasises that evidence from informants who are self confessed drug addicts and themselves involved in the offending is not as strong as that of undercover Police. Here however, the use of undercover Police was unlikely to succeed because of the way the Police understood the accused was operating. This was confirmed by the evidence of Mr Bright. Further, for this very reason the use of a concealed video camera to provide corroboration for such a witness was obviously very desirable from the Police point of view.
The Judge concluded in this way:
This leaves the last and perhaps most important aspect of the application and that is the fact that the Police were prepared to tolerate Bright's continued offending. I have already referred to the order of the offending. I am satisfied, after listening to Det. Sgt. Carlson that he was well aware of the reality of the situation created by putting Bright in as a Police agent, and that further offending would take place on a regular basis involving the supply of Class B and Class A drugs to a substantial number of users. While it was obviously desirable to prevent this, it seems to me that the Police desire to obtain compelling evidence against the accused as a very substantial supplier would outweigh the harm to the community by allowing the trade to continue for some months. On this basis therefore I consider that what the Police did was in the wider public interest and for the reasons I have stated now and have stated before, I do not consider that there was any "unfairness" to the accused in terms of his right to privacy or in any other way.

Conviction: the rival arguments (excluding count 24)

Mr Gibson advanced the appeal against conviction on counts 4 to 21 (the Bright transaction counts) on two related grounds. First, the investigative tactics used by the Police in pursuit of the appellant were unorthodox, unreasonable and improper such as to warrant the intervention of the court on grounds of abuse of process and unfairness by excluding the evidence of Mr Bright and the Police Officers directly involved in his operations. Second, the surreptitious video‑recording of the appellant constituted an unreasonable search and seizure in breach of s21 of the Bill of Rights and accordingly the video‑tapes should not have been admitted in evidence.
Mr Gibson submitted that the orthodox investigation approach could have included judicially authorised search options and the deployment of under‑cover Police Officers. But, he said, the approach adopted involved employing Mr Bright, an active drug addict who disseminated large quantities of drugs into the community, allegedly at the behest of the appellant, over a seven month period with those crimes and associated offending to fund purchases being allowed to occur contrary to the function of the Police to prevent offending.
Mr Gibson accepted that on the facts there was no element of entrapment - the appellant was a voluntary and willing participant in the drug dealing activities. Mr Gibson also appeared to accept that the Police conduct could not be characterised as an abuse of the process of the court. Rather, he submitted, the evidence should be excluded on the ground of unfairness and to discipline the Police.
Turning to s21, Mr Gibson submitted that the use of the video constituted a search; that by reason of its intrusion it should not be considered lawful; that, by virtue of Mr Bright's deceit, his presence at the house went beyond that of flatmate and friend and constituted him a trespasser; and that, while the reasonableness of a search will be affected by where it occurred and the degree of intrusion, invoking Canadian authorities, particularly R v Duarte (1990) 53 CCC (3d) 1 and R v Wong (1990) 60 CCC (3d) 460, he submitted that surreptitious electronic video‑recording by agents of the State within the sanctity of the home must be considered unreasonable.
As to the first ground, Mr Pike for the Crown submitted that New Zealand law does not require any Police investigative technique to be based on prescriptive authorisation. On the evidence available to the Police when investigating the nature and scope of the appellant's widespread, protracted and flagrant, although not readily detectable, offending, it was reasonably clear that audio interception would yield nothing; that because limited drugs were held at the house warrants to search for drugs could yield little (three searches pursuant to warrants revealed no morphine sulphate there); and under‑cover operations could not be used because, alive to that risk, the appellant dealt only with drug addicts. On the important question of Police allowing Mr Bright to deal in drugs while an agent of the State, and so allowing widespread drug distribution into the community and associated offending to occur, Mr Pike submitted that that was inevitable if the Police were to seek sufficient evidence to establish the seriousness of the offending of a person whom they had good reason to believe was committing offences on a much graver scale than could be established on the limited evidence which they could put before a jury in February 1999.

Mr Pike made extensive submissions as to whether the surreptitious participant videoing of drug transactions could properly be characterised as a search and, recognising this court has not yet found it necessary to express a firm conclusion as to the full meaning of that word, submitted that in any event the "search" was not unreasonable. The consistent and principled approach in New Zealand, he said, is that if a participant could give oral or written evidence of an event in which they have participated there can be no rational basis for excluding audio or video records of that event, which will ordinarily give an unassailable and accurate record of the evidence. In his submission the Canadian approach is explained by rigid adhesion in that jurisdiction to the per se unreasonableness of a warrantless search.

The discretion to exclude evidence unfairly obtained

It is well settled at common law that the courts of New Zealand have a discretion to exclude legally admissible evidence on the ground of unfairness. An obvious example is where voluntary admissions or confessions are made in circumstances rendering the use of the evidence unfair. R v Ali (CA 253/99, judgment 8 December 1999) is a recent case in this court where the authorities are discussed. In other situations, not involving admissions and confessions as such, the discretion exercisable on policy grounds is concerned with the quality of the conduct of those who obtained the evidence. As Eichelbaum CJ observed in R v Dally [1990] 2 NZLR 184, 192, that inquiry involves weighing the need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from unlawful and unfair treatment. Another way of expressing the foundation of the discretion, he said, is that it relates to the rejection of evidence where its admission would be calculated to bring the administration of justice into disrepute. In R v Convery [1968] NZLR 426 Turner J emphasised that the court may consider not only the case immediately before it, but also the necessity of maintaining effective control over Police procedure in the generality of cases.
The issue in this area of the case involves competing aspects of the public interest in law enforcement. One is the desirability of bringing criminals to justice. The other is the public interest in the maintenance of proper standards by the Police (R v Williams (1990) 7 CRNZ 378, 383). It is, then, a matter of looking at the totality of the Police conduct. And the issue of fairness is determined by the Judge as a matter of judgment rather than by reference to the onus of proof (Ali, para [51]).
On the material before Ellis J when he ruled Mr Bright's evidence admissible, and on our assessment of the evidence at trial, we are satisfied that there was nothing in the nature of a wrong decision by the Judge on any question of law (Crimes Act 1961 s385(1)(b)) or in the nature of a miscarriage of justice within s385(1)(c). The Police were investigating what they suspected was serious drug dealing on a very substantial scale involving morphine, a Class B drug, leading to its conversion into heroin, a Class A drug. The full extent and gravity of the offending was not easily detectable. On the information they had from Mr Perkins and Mr Bright from February 1999 onwards, they faced obvious difficulties in obtaining evidence. Limited quantities of drugs were held at 173 Featherston Street, secreted there by the appellant, as is evident from the fact that no morphine sulphate was found on the three searches made in execution of search warrants (para [31]). The appellant had said he believed the premises were bugged and the evidence available to the Police and given at trial from Mr Perkins and Mr Bright was that, for that reason, the appellant insisted on requests for drugs being made by hand signals. Accordingly, the Police had insufficient basis for seeking an interception warrant under the Misuse of Drugs legislation.
Next, the Police reasonably believed that the purchasers of the drugs were intravenous drug users who were not likely to be available and reliable witnesses. They reasonably believed they could not use under‑cover Police Officers. Reliant as they were on the intelligence provided and the evidence which could be gathered by their agent Mr Bright, they believed they needed time to build up a fuller picture of the extent of the appellant's drug dealing operations and, as well, they considered they needed a series of evidential purchases by Mr Bright over a period. Further, they reasonably believed they needed evidence supporting his evidence of those purchases to counter the likely challenge to his credibility and reliability as a drug addict and distributor of drugs. A body listening device was tried on 29 July and revealed nothing of consequence because of the appellant's mode of doing business with hand signals. Against that background and viewed as a matter of fairness, it cannot possibly be said that the steps taken by the Police to have Mr Bright surreptitiously video subsequent transactions passed beyond that which is acceptable.
Finally, we are not persuaded that the conduct of the Police in allowing Mr Bright to continue offending from February to August, and for drugs to be distributed through the community and associated offending to fund drug purchases to occur, can be characterised as unfair and calling for the exclusion of the evidence. There are competing public interests. The reality of the situation the Police faced was that, if they were to serve the strong public interest in investigating and obtaining sufficient evidence to establish the gravity of the offending of the appellant as a very substantial supplier of drugs, they had to tolerate the offending that would occur in the distribution of those drugs and associated offending in the meantime. On the evidence canvassed at the voir dire and at trial we are satisfied, as was Ellis J in his ruling after the voir dire, that they were entitled to make that judgment. Again, this is not a case where with the benefit of hindsight the court could properly say that in the exercise of their judgment the Police should nevertheless have terminated the operation earlier and by doing so have reduced the harm to the community.

Unreasonable search and seizure

Section 21 of the New Zealand Bill of Rights affirms that "Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise." In R v Grayson and Taylor [1997] 1 NZLR 399 (leave to appeal refused by the Privy Council, 29 July 1997) this court set out in some detail certain principles and considerations relevant to challenges to the admissibility of evidence under s21. It is sufficient for immediate purposes to note four matters which were emphasised there.
The first is that a s21 inquiry requires weighing relevant values and public interests and balancing legitimate State interests, including law enforcement considerations, against the high value which contemporary society attaches to privacy and to the security of personal privacy against arbitrary intrusions by those in authority (p407). And an assessment of the seriousness of the particular intrusion involves considerations of fact and degree, not taking absolutist stances (p407).
The second is that a search is unreasonable if the circumstances giving rise to it make the search unreasonable or if a search which would otherwise be reasonable is carried out in an unreasonable manner. So too seizure. Whether a governmental search or seizure is unreasonable depends on both the subject matter and the particular time, place and circumstance (p407).
The third is that a search and seizure actually carried out by an informer or other private individual will be governmental in character and subject to the Bill of Rights protection if there is governmental instigation or involvement in the search (p407).
The fourth is that while the meaning of search was expressed in broad terms as being an examination of a person or property, and seizure as taking of that which is discovered, we emphasised that non‑trespassory investigative techniques utilising modern technologies such as electronic surveillance and long‑distance photography may give rise to a host of problems not in issue in Grayson and Taylor (p406).
We have had to consider some of those problems in resolving issues in a series of cases in which the court also reviewed authorities in other jurisdictions, including Duarte and Wong on which Mr Gibson particularly relied. R v A [1994] 1 NZLR 429 and R v Barlow (1995) 14 CRNZ 9, which preceded Grayson and Taylor, involved surreptitious audio participant recording of conversations. R v Fraser [1997] 2 NZLR 442 and R v Gardiner, which were subsequent, involved external video surveillance. In all those cases the court applied the time, place and circumstance test for unreasonableness.
In Fraser (at p449) the court also observed that in most and perhaps all cases where the conduct of the authorities is deemed to be reasonable it will not be material to decide whether or not there has been a search or seizure. In this case, too, it is convenient to turn immediately to the question of whether what was done was unreasonable.
In R v A a Police Officer pretending to be a potential hit man wore a body microphone when meeting with A to discuss a request that he kill C and D. The microphone transmitted the conversation to a nearby police van. The court held that the participant recording of the conversation was not unlawful. It was undertaken for legitimate Police purposes. Prior judicial approval was neither required nor available. There was no basis in parliamentary consideration of electronic surveillance for the courts to conclude that public policy requires treating participant recording as inherently destructive of basic values. The court adopted a time, place and circumstance analysis and concluded that the recording was not unreasonable.
After discussion of American and Canadian authorities the respective approaches were summarised in this way (p436):
In short, the Fourth Amendment to the United States Constitution applies only where the target of police surveillance had an actual expectation of privacy which society is prepared to regard as reasonable and in that context the Court adopts an assumed risk analysis. The Canadian concern is whether the particular police investigation technique can be tolerated by a free and democratic society as a reasonable intrusion on a citizen's privacy.

Underlying the risk analysis is the proposition that if the conduct of the government agent does not infringe justifiable expectations of privacy the defendant may be held to have assumed the risk that the agent may record, as well as testify to, the encounter.

In Duarte La Forest J delivering the leading judgment saw as the reason for the protection against electronic participant surveillance that (pp11, 13):
if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. ... Whether the microphone is hidden in the wall or concealed on the body of a participant to the conversation, the assessment whether the surreptitious recording trenches on a reasonable expectation of privacy must turn on whether the person whose words were recorded spoke in circumstances in which it was reasonable for that person to expect that his or her words would only be heard by the persons he or she was addressing.
In Wong, which concerned recording a gambling session through a camera in the wall of the hotel room, the court equated video recording with audio recording (p479):
Transposing to the technology in question here, it must follow that there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on video tape, a distinction that may in certain circumstances have constitutional implications. To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities.
The Canadian approach was not applied in R v A. Richardson J said at p437:
An Orwellian world in which the state has both the desire and facility to record all our private communications would deny fundamental human rights. The right to be left alone is basic to the flourishing of human personality. Fears of electronic snooping may have a chilling effect on free expression. But as in many other areas of living in today's complex society the social answer in less extreme cases turns on an assessment of all the circumstances rather than on an impossible quest for universally agreed moral absolutes. In my judgment it is going too far to say that those underlying privacy values are inevitably imperilled by any recording of any conversation whatever the circumstances. It is, I repeat, a matter of time, place and circumstance.

See also Casey J (p440) and Robertson J (p449). And for an extensive Canadian critique of Duarte and Wong see Hogg, Constitutional Law of Canada (4th ed) para 45.5(b).

In Barlow where conversations between a friend of the accused, acting as it happened as agent for the State, and the accused were recorded, the court held that participant recording was not inherently unreasonable where its purpose was to obtain a full and correct record and enhance the reliability of the evidence to be given (Cooke P p22, Richardson J p33, Hardie Boys J p40, Gault J p48).
We are satisfied both as a matter of basic principle and in terms of the authority of R v A and R v Barlow that the approach taken in these cases in relation to participant recording is applicable in this case and in that regard that there is no difference in principle between audio and video recording in this kind of case. As with other inquiries under s21 it is a matter of assessing time, place and circumstance, not adopting absolutist stances or rigid hard line tests.
On the merits there can be only one answer. The appellant was a willing participant in the transactions with Mr Bright who lived on the premises, was his trusted courier, and must be regarded as having express licence to be there on all those occasions. In a setting where drug transactions were conducted only by hand signals because the supplier believed his actions were under State electronic surveillance and where those transactions were confined to addicts to avoid under‑cover Police operations, it is in our view hopeless to argue that expectations of privacy over‑ride other public interest values. Further, the whole purpose of the video was to obtain a record of what actually took place as it occurred and so to reduce the risk of unfair undermining of the reliability of Mr Bright's testimony if it stood alone.

The appeal against conviction: count 24

The charge, as a representative charge, was that the appellant between 1 January 1990 and 19 August 1999 at Palmerston North and elsewhere in New Zealand supplied morphine in the form of morphine sulphate to persons other than Mr Perkins and Mr Bright but otherwise unknown. Thus the jury had to be satisfied that the appellant had sold morphine sulphate on two or more occasions during the specified period. However, as it happened, the Crown put the case to the jury on a wider basis and the Judge directed the jury not to convict on that count "unless you are satisfied there were many supplies of morphine sulphate tablets to a number of persons".
In arguing the appeal Mr Gibson initially submitted that there was no proof of such offending prior to mid 1998 when Mr Perkins first saw the appellant supplying tablets to others (para [6]) and that that was fatal to the charge. But the time span of the charge only sets the bounds. It does not require proof of offending throughout the period. It is far too late to seek an amendment to narrow the indictment. The jury had ample evidence of a course of dealing on which they were entitled to find the charge proved. On sentencing it was for the Judge to determine, conformably with the verdicts and the evidence, the extent and gravity of the offending, and in that regard to assess as he did the asset accretion evidence.

Appeal against sentence

On sentencing Ellis J characterised the offending in respect of which the appellant had been convicted as in the highest of the three categories in R v Wallace [1999] 3 NZLR 159 and said that the starting consideration for a fully defended case where there could be no allowance for a plea of guilty must be a penalty in the range of 8 to 14 years.
Two further significant features were that the appellant had previously offended in respect of serious Class A drug offending, for which he had been sentenced to 9 years imprisonment, and that the improvement in the appellant's financial position of the order of $600,000 through drug trafficking was dramatic evidence of the extent of the offending. In that regard the Judge accepted that the evidence before the jury in respect of the early years was old and he felt it unnecessary to be precise as to when the appellant actually started to supply.
On that assessment the Judge considered the appropriate starting point for the offending was 12 years imprisonment. He went on to consider whether there were any mitigating features to affect the sentence, noting that at the appellant's age of 54 years a long term was perhaps an added hardship and that the previous sentence was imposed some 20 years ago. But, building on the sentencing remarks on that earlier occasion, he concluded that 12 years was the appropriate total sentence for the appellant, who was not an addict, whose motive was profit, who was well up in the drug hierarchy and who had chosen to trade on the suffering, misery and degradation of human beings.
Mr Gibson submitted that the sentence was manifestly excessive. By comparison with Wallace, he said, it did not involve large scale manufacturing for profit, accretion of over a million dollars of assets in a period of a little over a year, the locating of a large amount of cash, products and ingredients, and the use of gangs in the distribution of the drugs. He submitted, too, that there was no proof of offending over the whole span of count 24 and the appellant should not be sentenced as if that were the case.
We are satisfied that the sentence was well within the discretion available to the sentencing Judge who had presided over a lengthy trial and, particularly in relation to count 24, was entitled to make his assessment of the extent and gravity of the offending involved. We are not persuaded that he erred in that assessment.
In Wallace, this court concluded that the sentencing decisions in the 24 Class B cases summarised showed that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender would be in excess of 8 years and in the very bad cases up to 14 years, especially where repeat offending is involved (para [30]). Mr Wallace was described as operating over a considerable period (18 months) on a major scale and with the overall level of offending being indicated by the amount of money traced through the Wallaces' hands (over $1 m) and the quantities of drugs, raw materials, goods and moneys seized. Allowing for the guilty plea and absence of previous convictions, the sentence of 10 years imprisonment imposed by the sentencing Judge was seen as fully open to the Judge and unobjectionable (para [36]). And in R v Van Lent (CA166/99, judgment 29 September 1999) the court considered that Mr Wallace may have received a relatively lenient sentence and that a sentence somewhat higher than the 10 years imposed on sentencing would not have been disturbed (para [25]).

Given the duration and scale of the offending in this case, reflected too in the unexplained income and assets analysis, by this repeat offender who did not plead guilty, we are satisfied that the sentence in this case must stand.

Result

For the reasons given the appeals against conviction and sentence are dismissed.

Solicitors
P Coles, Palmerston North, for appellant
Crown Law Office, Wellington

[2000] NZCA 99

26 June 2000