The Queen v Sullivan

[2008] NZCA 504

IN THE COURT OF APPEAL OF NEW ZEALAND

CA467/2008
[2008] NZCA 504

THE QUEEN

v

AARON LUKE SULLIVAN

Hearing:18 November 2008

Court:Arnold, Venning and Miller JJ

Counsel:A J Bailey and S G Bailey for the Appellant

N P Chisnall for the Crown

Judgment:28 November 2008 at 2.30 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Miller J)

[1]       Mr Sullivan appeals against conviction on one charge of possession of the Class B controlled drug morphine for supply.  He says the jury that found him guilty in the District Court at Christchurch on 25 June 2008 heard inadmissible expert evidence of a police witness, Detective Freeman.  Parts of that evidence are said to have been based on facts that had not been proved as required by s 25(3) of the Evidence Act 2006.

[2]       On searching Mr Sullivan’s home the police found 13 morphine sulphate tablets and about 40mls of acetic anhydride together with a small tin containing 7.8 grams of cannabis and cannabis utensils.  He pleaded guilty to possession of the acetic anhydride, which is a precursor substance, and accepted that he also had possession of the morphine sulphate.  The trial issue was whether he had it for supply.  He gave evidence, saying the tablets were for his own use and that he smoked them by crushing them and combining the powder with cannabis.

[3]       The Crown led the evidence of two police officers, Detective Sergeant Murton and Detective Freeman, who were said to be experienced in the investigation of drug offences and familiar with the manufacture of homebake heroin, for which morphine sulphate is a base product.

[4]       Detective Sergeant Murton, an experienced officer, was the principal expert.  He said that because of the addictive properties of morphine sulphate tablets most users are sickness beneficiaries or unemployed and so can only afford to buy one tablet at a time.  Mid-level dealers usually buy them in lots of 10-20, sometimes more.  The witness did not offer an opinion on the quantity of acetic anhydride but he did say that only a drop is needed for the conversion process.  The inference that the jury was invited to draw was that Mr Sullivan, who had 13 tablets and said he was in employment, was a mid-level dealer. 

[5]       Detective Freeman gave evidence next.  He explained in evidence in chief that he had two years drug squad experience, that he had attended and executed a number of drug search warrants and spoken to users and informants, that heroin is usually taken intravenously and not smoked, that morphine sulphate tablets are often sold with acetic anhydride so they can be converted into heroin, and that there were none of the usual signs of anyone making or using heroin in the house.  No objection was taken to any of this evidence.

[6]       In cross-examination the detective agreed that both users and dealers might be found with morphine sulphate tablets and acetic anhydride.  That led to re‑examination about whether a user would be found with the quantities in Mr Sullivan’s possession.  Trial counsel (not Mr Bailey) objected but Judge Farish allowed the questions.  The detective said the 13 tablets and 40 mls of acetic anhydride were a sign of a mid-level dealer.  In his experience an end user would hold only two or three tablets at a time because 13 tablets cost $1,300.

[7]       The appeal is confined to the evidence given in re-examination.  Mr Bailey says that it was based on facts that are “outside the general body of knowledge that makes up the expertise” of the witness for purposes of s 25(3); accordingly, the facts on which the detective based his opinion that the quantities suggested a mid-level dealer had to be proved in the trial.

[8]       We do not agree.  Quantities and prices of drugs and precursor substances associated with personal use and dealing are within the general body of knowledge making up the expertise of a police officer who qualifies as an expert in the production, sale and use of the illicit drug concerned.  Accordingly, Detective Freeman’s evidence was admissible once he was accepted as an expert as defined in the Evidence Act; that is, a person with specialised knowledge or skill based on training, study, or experience.  Trial counsel might have explored the question whether with only two years relevant experience the Detective qualified as an expert in homebake heroin, but he did not.

[9]       In any event, we observe that the evidence of Detective Freeman was confirmed as to the quantity of tablets by Detective Sergeant Murton, whose evidence was not challenged in this respect at trial or on appeal.  Mr Bailey sought to distinguish between the evidence of the two detectives by saying that Detective Sergeant Murton’s evidence was general in nature whereas Detective Freeman’s was more specific to the case.  But both were making the same point, namely that possession of this quantity of tablets signified, in their experience, a mid-level dealer.  Further, Judge Farish directed the jury that it was for them to assess the expert evidence and give it such weight as they thought fit.

[10]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington