Tran v R

Case [2010] NZCA 349 4 August 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA92/2010
[2010] NZCA 349
BETWEENMINH HUY TRAN

Appellant

ANDTHE QUEEN

Respondent

Hearing:21 July 2010

Court:O'Regan P, Panckhurst and MacKenzie JJ
Counsel:M B Meyrick for Appellant

F E Guy Kidd for Respondent

Judgment:4 August 2010 at 12.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
[1]        The appellant stood trial in December 2009 in the District Court at Auckland before Judge Paul and a jury on one count of importing the Class C controlled drug pseudoephedrine, three counts of possession for sale of pseudoephedrine, one count of possession of equipment capable of being used in the manufacture for methamphetamine, and one count of possession of two pipes for the purpose of consumption of methamphetamine. The importation and possession for sale counts were faced jointly with Ms Yu, who pleaded guilty before trial. The appellant was found guilty of the three possession for sale and the possession of pipes counts. He was acquitted on the importation and possession of equipment counts. He was sentenced in January 2010 to six years imprisonment. He appeals against both conviction and sentence.
Factual background
[2]        The facts were that a shipment of marble tiles arrived in New Zealand from China in January 2008. It was inspected by Customs and became the subject of a controlled delivery. The freight forwarding company had difficulty ascertaining a delivery address and were given the appellant’s mobile telephone number. The appellant arranged for Ms Yu to meet the delivery truck and direct it to an address in Mt Albert Road. Police conducted a search of the address later that day. They found the appellant and Ms Yu surrounded by broken marble tiles and packages of ContacNT capsules containing pseudoephedrine in a pillowcase and in shoe boxes, with some still secreted in unbroken tiles. The total quantity of ContacNT was admitted at trial as weighing 45.76kg, and was described by the Judge at sentencing as containing 37kg of pseudoephedrine, having a potential yield of 7.5 to 11.2kg of methamphetamine, with a street value of $7.5 to $11.2m. A “parr bomb”, that is, a high pressure reaction vessel commonly used in the manufacture of methamphetamine, was found in a van at the address. Two glass pipes of a type used for the consumption of methamphetamine were located in a garage at the rear of the address.
The grounds of appeal
[3]        On the possession of pseudoephedrine for supply counts there are two grounds of appeal. The first is that the trial Judge misdirected the jury on the presumption in s 6(6) of the Misuse of Drugs Act 1975 (the Act). The second is that the trial Judge erred in allowing the admission in evidence of certain text messages to and from two mobile telephones which were found in the possession of the appellant at the time of the search.
[4]        On the possession of the methamphetamine pipes count, it is submitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tran v R

Details

AGLC: Tran v R [2010] NZCA 349
Case: [2010] NZCA 349
Decision Date: 4 August 2010

CaseChat Overview and Summary

The appeal was brought by Minh Huy Tran against both his conviction and sentence in relation to drug trafficking charges. The appellant was found guilty of three counts of possession for sale of pseudoephedrine and one count of possession of equipment for the consumption of methamphetamine. He was acquitted of charges relating to the importation of pseudoephedrine and possession of equipment for the manufacture of methamphetamine. The appellant was sentenced to six years imprisonment. The grounds of appeal were: first, that the trial judge misdirected the jury on the presumption in section 6(6) of the Misuse of Drugs Act 1975; second, that the trial judge erred in admitting text messages found on the appellant's mobile phone; third, that there was insufficient evidence to support the conviction of possession of the methamphetamine pipes; and fourth, that the sentence was manifestly excessive. The Court of Appeal held that the presumption applied so that the appellant was presumed to be in possession of the pseudoephedrine for the purpose of sale, unless the contrary was proved. The text messages were not necessary evidence on the issue of the purpose of sale. The evidence was sufficient to support the conviction of possession of the pipes. The sentence was not manifestly excessive, and the appellant should count himself fortunate that the starting point was not higher. The appeal against conviction and sentence was dismissed.

Orders