The Queen v William Robert Scanlan
[2000] NZCA 272
•12 April 2000
| ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF [N] |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 556/99 |
THE QUEEN
V
WILLIAM ROBERT SCANLAN
| Hearing: | 12 April 2000 [at Auckland] |
| Coram: | Thomas J Heron J Cartwright J |
| Appearances: | P J Kaye for Appellant K B H Hastie for Crown |
| Judgment: | 12 April 2000 |
| JUDGMENT OF THE COURT DELIVERED BY CARTWRIGHT J |
The appellant William Robert Scanlan appeals against both conviction and sentence. No issue is taken with the conviction entered in relation to count 3 a charge of attempting to possess the Class B Controlled drug MDMA. At trial, this count was conceded and the jury brought in a guilty verdict. The appeal focuses on the first two counts which charged:
[a]Count 1, that the appellant on or about 22 April 1999 at Auckland together with [N] and person or persons unknown imported into New Zealand the Class B controlled drug MDMA (3,4-methylenedioxymethamphethamine); and
[b]Count 2, that on the same date the appellant conspired with [N] and/or person or persons unknown to supply the Class B controlled drug MDMA.
Background Facts
On 22nd April 1999 a courier ultimately identified as [N], a Swiss National, arrived in New Zealand on a flight from Indonesia. On arrival the Customs Authorities in New Zealand conducted a full search of his suitcase which revealed 3075 pink coloured tablets later, identified on ESR analysis as MDMA or “ecstasy” with a street value of approximately $NZ370,000. The courier when asked where he was staying in New Zealand produced a piece of paper with the name of the “Abaco Motel” Jervois Road Ponsonby, Auckland on it. A further search located a piece of paper with a telephone pager number, later identified as belonging to the appellant. Placebo tablets were substituted for the MDMA.
When the courier, [N], agreed to co-operate with the Police he was permitted to contact the pager number under Police supervision from a room in the Novotel Hotel in Auckland City. Following three calls to the pager number he received a call from the appellant in which it was arranged that the appellant would come to the Novotel Hotel and meet [N] in his room. Electronic equipment was installed and the conversation between the two men was recorded by audio and video equipment. An agreed price of $NZ100,000, payment for the tablets by the appellant, was established. The appellant agreed to pay $60,000 to [N] later that day and the balance within the next few days. The appellant then took possession of the two packages of placebo tablets and was arrested as he left the Hotel room. The Police located in the appellant’s shoulder bag a piece of Novotel Hotel notepaper with the figure of $100,000 on it, a pager later confirmed to match the number supplied to the Police by [N] and, at his home, documents relating to the drug “ecstasy” and a business card for Abaco Motel
[N] confirmed his involvement as a professional drug courier employed to deliver the drugs for a man in Thailand for a fee of $12,000. There was evidence of a previous visit by [N] during which he had stayed at the Abaco Motel and had met the appellant. The appellant declined to make any statement to the Police and at trial maintained through counsel that he was not a party to the importation.
In relation to count 2 the appellant’s defence was that he was a buyer and not a seller. While he had taken possession of the tablets (albeit placebos) he had yet to pay for them and had no means to do this. While there might be sufficient evidence on which a jury could convict for conspiracy to purchase, there was no evidence that he had agreed with [N] to supply other people and therefore no evidence of a conspiracy to supply.
The grounds of appeal against conviction
First ground of appeal
The first ground of appeal is that the trial Judge while directing the jury on the meaning of importation and the law of parties as it applied to the appellant, failed to put the defence case clearly to the jury. Counsel for the appellant set out the various portions of the summing up at which the Crown case was outlined in some detail to the jury:
[a]It was part of the Crown’s case that the appellant was expecting [N] to contact him concerning an importation of drugs. During the direction on inferences and clearly referring to this part of the Crown’s case, the Judge referred to the audio taped conversation between the appellant and [N], asking the jury to rhetorically determine whether there was any surprise on the appellant’s part when reference was made to the Thai supplier and whether the jury placed any importance on the appellant’s failure to question [N] as to the subject matter of the conversation.
[b]The Judge referred somewhat obliquely also to the defence case that Scanlan did not have anything approaching the $100,000 required to purchase the drugs in any bank account but went on immediately to remind the jury of Scanlan’s comment to [N] that “He had $100,000, it is on the tape, he said he could get $100,000”, asking the jury if it thought that that was “the best possible source of where the funds could come from ... he said it”.
[c]Further, after directing the jury on the law concerning importation and parties under s 66 of the Crimes Act the Judge went on to say:
“... Now that is what this case is all about. And the position is simply this, when drugs are brought into this country, you have got the people possibly overseas to get the drugs, they hand it to the courier who brings it in and when they get into New Zealand there is a chap at this end waiting for it – sometimes. How knows it is going to come to him sometime. He knows the drugs are coming and he is waiting for them – and that is what this case is all about. The Crown case is, look we are not suggesting for a moment that Mr Scanlan knew Mr [N] - didn’t know when he was coming in – but because of the pager being given to Mr [N] and the number, the arrangement is all set up with the fellow overseas but when the courier comes in he, Mr Scanlan, will answer the pager and turn up and pick up the drugs and therefore he is a party to the importation because he is aiding and abetting, assisting bringing it in, it is as simple as that. To convict Mr Scanlan you have to be satisfied first of all of the importation – about which there is no argument – and the fact that he was a party. That at some time or other he had aided and abetted and it was brought in and he knew it was coming in and he would pick it up from the courier and the Crown says, well look at the use of the pager, look at the conversations, the reference to the main supplier and Mr Scanlan’s actions. So he was ready and willing to pick it up when he got the call? Was that going in to meet the courier all part of a pre-conceived plan which he had made at some time or other with persons unknown as the charge states. Whether it was the fellow the courier met in Thailand or whether it was somebody else, it doesn’t really matter, as long as the Crown is satisfied you he well knew there was an importation coming in sometime, date uncertain and knowing that when the pager beeped he would answer the call ...”. (Reference page 27 Case on Appeal)
[d]Then when referring to submissions put by counsel for the accused the Judge says:
“... I briefly refer to the opposing counsel’s submissions, I do so because you have just heard the evidence. I don’t want to get into the facts. It’s not my duty to do so. I'm leaving them entirely to you. The Crown’s case is simply, be real. That’s really what the Crown is staying. Be real. Here we have a fellow arriving from overseas with a large quantity of drugs, of a fairly substantial value, and he has this pager and Mr Scanlan answers the call when he gets it, he arrives there, no real haggle about anything and looking at it overall, you should be satisfied this was simply the overseas connection meeting up with the New Zealand connection. That is what Mr Lawry submits to you.” (p 29 Case on Appeal)
Counsel for the appellant submits that in spite of the reference to his submissions at no point in that part of the direction does the Judge in fact refer to them.
[e]Finally, counsel for the appellant refers to the manner in which the defence case was summarised. He said:
“Mr Kaye says, well the case is all about interpretation, what does it all mean, these tapes? Well that is perfectly correct, in a sense, but look at the interpretation and the like of the actions of the people as you find established and he says to you, look at the handwriting on the pages he referred you to; could it have been that Mr Scanlan knew nothing about this arrangement with the man in Thailand? Could it have been the man in Thailand simply sent Mr [N] over here without letting Scanlan know anything about it. Out of the blue. Well, that is a matter entirely over to you. Do you think it reasonably feasible, that the man in Thailand would simply send a courier overseas with this obviously valuable commodity with no outlay? ... challenge the courier. Can you really believe this man in Thailand even exists? Yes, Nick was the chap’s name. Well, you’ll note the first conversation there, “yeah, hi, its me, friend from Nick”. Does that appear to you to be an identification signal as to who the person was? If Nick doesn’t exist what's the point of the courier saying, “I'm a friend from Nick”, or is he Nick? Those are all the matters you have to determine....” (emphasis added) (p 29 Case on Appeal)
At trial counsel for the appellant had put his case on the basis that Scanlan knew nothing about the arrangement with the man in Thailand and that there was nothing significant in the reference to the Abaco Motel and the pager number. Both could well have come from the previous contact that he had had with [N]. And during the course of the evidence [N] confirmed that he had been to New Zealand in October 1998, and stayed at the Abaco Motel. But although he agreed he had spoken briefly to the appellant he had not received his pager number on that occasion, a point which must seriously have weakened the defence case.
The real issue for the appellant is whether the defence case was put properly to the jury as part of the Judge’s summing up. It is apparent that there was a detailed discussion of the Crown’s case which, in Mr Kaye’s submission, when compared with the brief references to the appellant’s case results in an unbalanced summary.
When considering this submission, it is appropriate to note that this was a brief, one-day trial and that as the Judge summed up the jury would therefore have a clear picture of the evidence and submissions. The defence case had been put immediately before the summing up. The jury could have been in no doubt as to its main points. As Mr Kaye also conceded, this was a strong Crown case. In these circumstances while remaining an essential part of the summing up, it is unnecessary, even artificial, to restate in detail issues which have just been traversed. And when the Crown’s case is strong, the result may often be that more of its detail emerges during the summing up; there is less that is able to be said about the case for the accused.
We do not agree that the Judge has failed to put the defence case adequately on the first count. There are references during the summing up which appropriately summarises it in a manner which is proportional both to the length of the trial and to the strength of the Crown’s case.
It is also useful to consider whether there was evidence on which the jury could conclude that the appellant was a party to the offence of importation. In R v Hancox [1989] 3 NZLR 60 at 62 the Court said:
““To import” involves active conduct; and the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand territorial limits. Importing into New Zealand for the purposes of s 6(1)(a) is a process. It does not begin and end at a split second of time. The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination. It follows that, as was the case in Saxton v Police, the importer may be convicted under s 6(1)(a) even though the goods are intercepted by customs and never reach the addressee – or are otherwise disposed of in transit. But the process does not end so long as the goods remain in transit, that is until any shipping and customs formalities are completed and the consignment is available to the consignee at its immediate destination. In Bell v R (1983) 8 CCC (3d) 97, 104, Dickson J expressed the concept in this way:
“The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between.”
See also Saxton v Police (1981) 2 NZLR 186.”
In order then to be a party to the offence of importation the appellant must have offered some form of assistance at some stage during the importation process. There was evidence such as the record of the Motel and the appellant’s pager number which would have allowed the jury to conclude that he was offering assistance or encouragement to the importation of the drugs. The fact that he was in effect the consignee may also be evidence from which the jury could conclude that he had encouraged the importation.
Second ground of appeal
Counsel for the appellant submits that the direction on conspiracy to supply was also inadequately put during the course of the trial Judge’s summing up. The direction was contained in a short passage at page 8 when the Judge said:
“Count 2, just as you would expect, importing a drug such as ecstasy is illegal, so it is illegal or an offence if two or more people agree to supply ecstasy to the other people. Of course, again this count is linked up with the overseas connection and also with Mr [N].”
The appellant concedes that there was clear evidence of an agreement to purchase the drugs but that at no time did it crystallise into an agreement to supply others. This Court examined the question of directions on conspiracy in R v Gemmell (1985) 2 NZLR 740 saying at page 500:
“A criminal conspiracy, as is implicit in what Lord Chelmsford said in R v Mulcahy, consists in an intention which is common to the minds of the conspirators and the manifestation of that intention by mutual consultation and agreement among them. It is of the essence of a conspiratorial agreement that there must be not only an intention to agree but also a common design to commit some offence, that is, to put the design into effect. The need for the existence of these two elements, the means rea and actus reus, as they are sometimes called, may be more difficult to distinguish in conspiracy than in other crimes. Smith & Hogan, Criminal Law (5 ed), 229. Moreover, the expressions “mens rea” and “actus reus” can sometimes be unenlightening and the first, at least, is capable of different meanings. But the two elements nonetheless exist. To have the necessary knowledge for conspiracy a person must know what he is supposed to have agreed to do. That is to say there must be an intention to be a party to an agreement to commit the specific offence to which the conspiracy is directed Churchill v Walton [1967] 2 AC 224, 237. However, he need not know that what he is alleged to have agreed to do is unlawful. Ibid, 237. An apparent agreement which stops short of an intention to carry the offence through to completion is not enough.”
The appellant submits that the direction given did not emphasise that in order to convict on the charge of conspiracy to supply the jury must conclude that he had intentionally entered an agreement to supply. Further, the jury should have been directed that in the absence of any such an agreement, the evidence would enable them to conclude only that he had agreed to purchase the drugs from [N].
Again, the appellant submits that the defence case on this count was not adequately put. The Judge said:
“... And then on count 2, he says if you look at all of this, isn't this simply Mr Scanlan negotiating a purchase; simply an agreement to purchase; no conspiracy in it at all – and he refers, of course, to the bank statements and so on. He says there is no evidence he had any money. Well I've discussed that with you ...”
We do not accept the appellant’s submission that neither the elements of a conspiracy nor the defence case was adequately covered in the summing up. Our earlier comments on the context in which the summing up must be placed, hold true also for the summary of the defence case on count 2. We consider also that the direction on conspiracy captures the essential elements of the offence and are adequate.
The appeal against conviction is dismissed.
The appeal against sentence
The appellant was sentenced to 8 years imprisonment on the first count and convicted and discharged on the remaining counts. At sentence the trial Judge noted the authorities: R v Wallace and Christie CA [1999] 3 NZLR 159 and R v Van Lent CA 166/99 29 September 1999 that while he considered the offence to be a commercial activity, it is also apparent from his comments on sentence it was treated as an isolated one. The courier [N] had already been sentenced following an early guilty plea to 5 years imprisonment for importing and conspiring to supply “ecstasy”. He was also given a reduction in his sentence because of the considerable assistance afforded to the Police. From a starting point of 10 years imprisonment described by this Court on his appeal against sentence as at the upper limit but within the available range, the 5 year total sentence of imprisonment was reduced to 4 years.
There were no such mitigating features allowing the trial Judge to reduce the appellant’s sentence. Credit was given however, for the fact that although not a first offender he had no previous conviction history for drug offending. To have reached a sentence of 8 years imprisonment the Judge must have started at 9 or 10 years. We agree that this was within the range and that there is no significant disparity between the sentence imposed on the appellant and on [N].
The appeal against sentence is dismissed.
Solicitors
Crown Law Office, Wellington for Crown
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