Waqairawaqa v The King
[2025] NZCA 442
•3 September 2025 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA4/2025 |
| BETWEEN | LIVAI SAKEO WAQAIRAWAQA |
| AND | THE KING |
| Hearing: | 23 June 2025 |
Court: | Woolford, Dunningham and Walker JJ |
Counsel: | A C Cresswell and M T Dempsey for Appellant |
Judgment: | 3 September 2025 at 11 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal is dismissed.
REASONS OF THE COURT
(Given by Walker J)
Following a trial before Judge J Bergseng and a jury, Mr Waqairawaqa was convicted on charges of supplying methamphetamine and conspiring to supply methamphetamine.[1] He was sentenced to four years and four months’ imprisonment.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(c)(ii) and (2A).
[2]R v Waqairawaqa [2024] NZDC 27255 [sentencing notes] at [51].
He now appeals his conviction.
Events giving rise to the charges
There are two different periods to which the charges relate. In respect of each, the Crown pinned its case on text or Wickr (an encrypted messaging application) messages on Mr Waqairawaqa’s cell phone, obtained pursuant to a production order.
The Crown case was that the messages showed that Mr Waqairawaqa
supplied 28 grams of methamphetamine between 8 and 9 March 2023 to an associate to on‑sell to others. This resulted in the supply charge.In respect of the second period, the Crown case was that Wickr messages between Mr Waqairawaqa and others showed that, between 4 and 8 December 2023, he acted as middleman arranging the supply of a kilogram of methamphetamine to Rotorua from Auckland. The transaction did not come to fruition but resulted in the conspiracy to supply charge.
An essential element of both charges required proof beyond reasonable doubt that the messages related to methamphetamine as opposed to any other controlled drug. None of the messages expressly referenced methamphetamine by name. The Crown led expert evidence from Detective Sergeant Steven Burborough, a police officer with 23 years of experience, to explain to the jury why they could infer that the messages were about methamphetamine.
The thrust of the defence case was that the Crown could not prove, first that Mr Waqairawaqa sent the messages on which the prosecution relied or, secondly, that they referred to methamphetamine rather than any other controlled drug.
Dismissal of s 147 application
The trial Judge declined to dismiss the charges at the close of the Crown case.[3] The single ground advanced by defence counsel in support of the dismissal was that the evidence could not establish that the messages related to methamphetamine. Therefore, as a matter of law, a properly directed jury could not reasonably convict the defendant. Instead, the jury would be asked to speculate. The Judge reasoned that the expert’s evidence needed to be considered as a whole, in context, and with the other relevant evidence rather than isolating parts of the messages. He referenced aspects of drug terminology in the messages as explained by the expert, including the words “whole” and “wet”, along with the expert evidence on pricing.[4] He concluded there was credible evidence capable of supporting the inference the Crown sought to draw.[5]
Extension of time
[3]R v Waqairawaqa [2024] NZDC 24348; and Criminal Procedure Act 2011, s 147.
[4]At [11].
[5]At [14].
The appeal is filed 10 working days out of time. The delay is explained, and the Crown does not oppose leave. Accordingly, we grant an extension of time.[6]
Approach to appeal
[6]Criminal Procedure Act, s 248(4); and Court of Appeal (Criminal) Rules 2005, r 12.
Mr Waqairawaqa brings his appeal under s 229 of the Criminal Procedure Act 2011 (the Act). This Court must allow the appeal if it is satisfied that the jury’s verdict was unreasonable, or a miscarriage of justice occurred.[7]
[7]Criminal Procedure Act, s 232(2)(a) and (c).
The pleaded grounds of appeal in essence challenge the Judge’s refusal to dismiss the charges. As amended, they are that the Judge erred first, in his application of the evidential standard under s 147 and secondly, in his assessment that there was sufficient credible and reliable evidence on which a properly directed jury could reasonably convict Mr Waqairawaqa. This is said to have led to a miscarriage of justice.
The Crown says that the appeal turns on the principles applying to unreasonable verdicts since there is no independent ability to appeal the s 147 decision itself. An unreasonable verdict is one where, having regard to all the evidence, no jury could reasonably have been satisfied to the required standard that the defendant was guilty.[8]
[8]Kuru v R [2024] NZSC 184, [2024] 1 NZLR 985 at [205]; and R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
The Crown’s approach is correct. However, Mr Waqairawaqa’s arguments developed at the hearing also challenge the admissibility of part of the expert evidence. This engages the miscarriage of justice limb in s 232 of the Act and whether any inadmissible evidence (if found) created a “real risk” that the outcome of the trial was affected or has resulted in an unfair trial.[9]
The expert evidence
[9]Criminal Procedure Act, s 232(4)(a).
As the expert evidence given at trial is central to this appeal, it necessitates setting it out in some detail.
The expert witness, Detective Sergeant Burborough (the Detective), explained that he had worked “the best part” of 10 years in specialist squads targeting drug dealers. This work included analysis of text message data and data from encrypted messaging applications. He confirmed that he had no operational involvement in the investigation leading to Mr Waqairawaqa’s charges and had read and agreed to abide with the code of conduct for expert witnesses.[10]
[10]High Court Rules 2016, sch 4.
At the outset of his evidence‑in‑chief, the Detective drew on his work experience to give generalised evidence about the methamphetamine trade including its various street names (which included “rock”); its effect as a stimulant; its predominant form as a crystal‑type substance; its pricing; and how it is typically dealt in quantities which are standard in the illicit drug trade, being a mixture of imperial and metric measures.
Relevant to the appeal, he explained in relation to methamphetamine that:
(a)When methamphetamine is sold in wholesale amounts it is generally sold as an ounce or in ounces. An ounce weighs 28.4 grams.
(b)It is common for a drug dealer to purchase an ounce and then break it down into grams.
(c)The value of an ounce will vary but, presently in the Bay of Plenty, typically sells for between $6,000 and $8,000 per ounce.
(d)Ounces are commonly referred to as “ohs, round ones, and wholes”.
(e)A gram is generally sold for between $300 and $500 and varies depending on the buyer/seller relationship.
(f)It is not uncommon for known and reliable buyers to purchase on credit (on tick) both at the street and dealer level.
He gave evidence that drug dealers and their buyers commonly use
“drug speak”, which can be code or colloquial terms recognised within the drug fraternity. He said that most of these words and terms have some legitimate meaning and need to be considered in context within the surrounding message conversations. He explained that some “drug speak” terms relating to a particular drug may also need to be considered by reference to the amounts of money under discussion.He described how a buyer may test the quality of the product before payment when larger quantities of methamphetamine are involved. He also said that failing to locate drugs in a defendant’s possession can be explained by timing, so does not necessarily “paint the picture in terms of what’s happening with that particular target or person”.[11]
[11]In respect to “timing”, the Detective explained that if the search is conducted soon after a defendant has “reloaded” a significant quantity of methamphetamine it is likely that police will find it. However, if the search occurs a period of time after the “reload”, it is possible that little or nothing of that quantity will be found as by then it would all/nearly all be sold.
The most material part of the Detective’s evidence was his opinion evidence as to the meaning of messages between Mr Waqairawaqa and associates on which the Crown relied. He began this part of his evidence with his overall conclusion “that they were to do with methamphetamine” before working through the messages in the exhibit booklet.
SMS text messages — 8 and 9 March 2023
This message thread gave rise to the charge of supplying methamphetamine. The Detective identified three main indicia in this text message thread which he relied on to form his opinion that the topic was methamphetamine when construed against the contextual backdrop of the whole thread.
The first was a reference by Mr Waqairawaqa to “a whole”. The specific context was a quality complaint about the product. Responding to the associate’s suggestion that sales were slow because there was a lot available, Mr Waqairawaqa texted:
Hw long bro coz the way u were txtn me u had it all sussed now it’s bk to nothing might as well gv the stuf bk so I cn get rid of it in a whole
The Detective’s evidence was that the term “whole” is a reference to a
“whole ounce, or 28 grams” and that this conversation therefore related to 28 grams of methamphetamine.The second indication was the associate’s statement (still in the context of slow sales) that the product was not strong enough and it could be mixed. The associate complained that the “stuff” was “fake no amp at all” and “I think me gonna have to go get sum wet to mix it for the amp”. Some hours later, in the same thread he asked
Mr Waqairawaqa “so bratha did u get wet or me can get if want and then mix it i jus did and it wasnt to bad”.The Detective said that this was about mixing the product with a different batch of methamphetamine to improve its purity. He explained that the word “wet” is a reference to recently “cooked” methamphetamine — the manufacturing process for which forms crystals and a wet end product until completion of the drying process.
The third indication was the reference to “8ball” in the associate’s message to
Mr Waqairawaqa; “if want do me 8ball or something and ill get wet off uda and mix it if want”. The Detective’s evidence was that an “eight ball” is a common drug dealing term for 3.5 grams of methamphetamine, derived from an American term for an eighth of an ounce.
Wickr messages — 4 December 2023 to 8 December 2023
The second message thread, this time over the encrypted application Wickr, was relied on for the charge of conspiracy to supply methamphetamine. The thread was between an account “flyingfijian11” attributed to Mr Waqairawaqa and accounts with the usernames “hulkyo” and “plaza221”.
The Detective’s evidence was that these messages showed Mr Waqairawaqa facilitating the supply from plaza221 to hulkyo of one kilogram of good quality methamphetamine which would sell well in Rotorua. The message thread beginning on 4 December 2023 read, as relevant:
[flyingfijian11] Chur my brother what’s your price range
[hulkyo] 140‑150k for the good stuff my brother
[flyingfijian11] Yup gta make sure it’s good for your doors jus messaging few bros now see what they got you jus wnt rock aye
A day later, there was a message from flyingfijian11 to plaza221 which read “Any rock for 130 cash upfront”, followed by “its gta go outa the doors here in Vegas so it’s gta be good my uso”.
A few days later a further message exchange occurred:
[plaza221] There’s some there uso 140
[flyingfijian11] Is it good uso?? And rock?
[plaza 221]Yip mean rock shards
[flyingfijan11] … cn some one bring it dwn the bro gna test it straight frm the bag if it’s good he’ll hand the cash over
The Detective’s evidence was that “rock” is “often used to describe methamphetamine that is sold as large crystalline pieces [which] are rock‑like in appearance”. He explained that users often prefer it as they believe it is less likely to be cut to the same extent as smaller crystal methamphetamine. He also stated that $140,000 to $150,000 is a typical price range for one kilogram of methamphetamine.
Asked whether the substance under discussion could be something other than methamphetamine he responded:
So the March text messages, certainly it’s my opinion that that discussion is in relation to methamphetamine just based on the quantity that’s being discussed and the way that that was going to be supplied as a whole, and then the 18 grams that was left, I believe that is in reference to methamphetamine.
And in relation to the December 2023 Wickr messages:
Yes, once again, it’s my opinion that that’s also methamphetamine. The conversation is consistent with methamphetamine discussion in terms of the price for a kilo of methamphetamine, 100 to $150,000. It’s been described as the good stuff, so, once again, consistent pricing for good quality methamphetamine … They also, Flyingfijian11, has sort of made it clear that his buyer is going to test that product so, once again, that’s consistent with getting good quality methamphetamine …
Cross‑examination
On cross‑examination, the Detective initially accepted that MDMA can come in a powder or a crystal form but said that in his experience he had not seen MDMA in a crystal, only in a powder. He then walked back from his earlier acknowledgement of crystal forms of MDMA in the following exchange:[12]
[12]Q denotes the defence counsel’s questions and A denotes the Detective’s responses.
Q: And you also agreed that MDMA can come in a crystal form?
A:Yes, I haven’t see [sic] MDMA in a crystal, I’ve only ever seen in a powder.
Q: But you’d agree that it could come in a crystal form?
A:Unsure. I’ve – I haven’t seen it as crystals like you would see methamphetamine.
Q:I think I asked you earlier to confirm if MDMA could come in a powder or a crystal form and you said yes.
A:Mmm. I can only speak from experience and I’ve only ever seen methamphetamine in more of a powder form, and that’s due to the way that it’s normally consumed.
The Court:[13]
[13]Q denotes the Judge’s question and A denotes the Detective’s response.
Q:Sorry, can we just clarify that, you have just said that you have only ever seen methamphetamine in a powder form.
A: MDMA, sorry Sir.
…
Cross examination continues:[14]
Q:But are you aware that it can come in a crystal form?
A:No I’m not. Sorry if I confused you with that earlier question but MDMA, that’s – I’ve only ever seen it as powder.
Q: And what is it before it’s powder?
A: I’m not familiar with the actual manufacturing process.
Q: Would it be crushed down from a crystal?
A: It’s normally pressed, it’s a powder which is pressed into a tablet.
…
[14]See above n 12.
Questioned about whether “one gram” is non‑specific to a particular drug, the Detective agreed and stated that the whole conversation must be looked at in its entirety before forming a view about the drug under discussion. But in relation to the term “a whole”, he confirmed that he had never heard of MDMA being referred to as “a whole” and that it means an ounce of methamphetamine. At this point he also explained that methamphetamine is by far the most common drug in Rotorua (“Vegas”) with MDMA being present but less typically used.[15]
[15]Rotorua was referred to as “Vegas” in the Wickr messaging thread.
Defence counsel put to him that MDMA can be “rock‑like” in appearance and is often referred to as “rock”. He responded that “I’m not an MDMA expert but I’ve never heard MDMA referred to as rock”. When asked if he had heard crack cocaine being referred to as rock, he said “as I’ve already spoken about, haven’t seen a lot of cocaine in this area. Generally I’ve heard — yeah, I couldn’t talk to cocaine specifically”.
When counsel put to him that the price points mentioned for methamphetamine would also be within the typical price of a kilogram of MDMA, the Detective said that he did not have a (comparative) typical price of MDMA because it is “very rare”. He went on to say:
… All I’m saying is that that pricing is very common, very typical, very consistent for methamphetamine. Could it be another commodity? Potentially. I’m just saying MDMA at that quantity, pretty rare.
…
Anything’s possible, but I don’t know.
Re‑examination
On re‑examination the Detective was asked whether he had given consideration to the March text messages being about MDMA or cannabis. He said:
I didn’t consider it because they were typical of methamphetamine. I can have another quick look now though and … they were talking about wanting to mix it up with some wet. That’s, that’s not MDMA, that’s consistent with methamphetamine.
He confirmed that he had not heard of MDMA referred to as rock or rock shards. He said the same in respect of cocaine, while qualifying that he was not saying that it is not referred to in those terms. He also confirmed that he had neither seen nor come across cocaine being sold in large crystals, again with a qualification that it was not his area.
Finally, for completeness we note that during his evidence‑in‑chief the Detective was also asked about earlier charges faced by Mr Waqairawaqa in respect of packages of a substance located in his car. Those charges were subsequently withdrawn because the substance, on testing, turned out not to be a controlled drug. The trial Judge intervened during questioning because the Detective had no firsthand knowledge of the matter. He directed the jury to ignore any evidence given by the Detective in respect to the packages, leaving before the Court only the evidence that eight packages of an ounce each in weight were found and they did not contain a controlled drug.
The defence elected not to call evidence.
Closing addresses
The first part of the Crown closing focused on the drug identity issue. Crown counsel submitted that the jury could be sure, given the Detective’s confidence, that the discussions were about methamphetamine and highlighted that the Detective did not rely on quantity alone but the overall context and surrounding conversations about prices, weight and “drug‑related lingo” which “was just not consistent with MDMA”. Crown counsel specifically reminded the jury that, in the Detective’s experience, he had not seen MDMA referred to as “rock” or “rock shards” or seen it in crystal form rather than powder or pill form. Further, he had not seen MDMA sold in kilogram amounts (a quantity that is entirely consistent with methamphetamine) and references to the term “wet” related to the point in the methamphetamine‑making process when the product is still wet. Therefore, the references to it were consistent with being methamphetamine only — as “wet” is not something that is mixed with MDMA.
The defence closing began with the same core issue. Defence counsel listed the reasons why the jury could not be sure as to the identity of the drug and were instead being left to speculate that methamphetamine was involved. She reminded the jury of the questions put on cross‑examination to the witness that “rock” can mean MDMA or any drug in crystal form.[16]
[16]Other reasons included that no methamphetamine was ever found, the word was never used, police sought search warrants for both MDMA and methamphetamine, ESR results for a substance earlier found in Mr Waqairawaqa’s possession showed it was not a controlled drug, and the pricing referenced in the messages is not consistent with what the Detective said was methamphetamine pricing.
Turning to the Detective’s expert evidence defence counsel submitted:
[He] was at pains to explain that he was an expert, he had all this experience, agreed he was independent and that he knew a lot about drugs but you might think once he realised we were suggesting that rock could be [MDMA], he became adamant that MDMA was not referred to as rock and it wasn’t found in Rotorua very much at all and it wasn’t found in crystal form and although he is an expert, you are allowed to draw on your own knowledge and your own experiences. You don’t have to accept this expert saying that MDMA doesn’t come in crystal form or that MDMA is predominantly found in Queenstown at the height of the ski season …
…
The expert agreed initially that MDMA could come in crystal or powder form and then he changed it and you might think that was to become unhelpful to the defence … the expert agreed that MDMA could come in crystal form and then … he said he hadn’t seen it in crystal form but he initially said he knew that [it] could, so how did he, you might wonder, if he’d never seen it … he agreed that if MDMA could present as a crystal, then you could also get MDMA crystal shard … he agreed that the term “shard” would not be unique to methamphetamine.
Summing up
The trial Judge’s summing up noted the Crown’s submission about the reliability of the expert evidence. He gave a standard direction on the use of expert evidence.
Regarding the defence closing address on this issue, the Judge said:
[51] [Counsel] broke her closing address down into why the Crown has not proven that the substance discussed was meth. She talked about the texts from March, the texts on Wickr, and she then highlighted what she submitted were a number of red herrings and then focused on issues that you should have that concern you about the evidence of Detective Sergeant Burborough, that while he has said he is impartial, she highlighted that you may have some concerns about that given the nature of his changing evidence in the course of his cross‑examination and [counsel] spent some time just focusing your attention and gave you a number of page references where acknowledgements were made about MDMA, possibly being in crystal or rock form and then it appeared that the detective sergeant seemed to walk back from those earlier concessions. So, she raises those points with you as important points that you need to consider carefully when it comes to assessing his evidence.
[52] Particular factors that were identified by [counsel] as being important in your consideration of the evidence is, first, that over the entire course of the operation, so from March through to December of 2023, no methamphetamine was ever located. It was not located when the police executed the search warrant at Mr Waqairawaqa’s home at [REDACTED]. No methamphetamine was located in the search of [REDACTED]. No methamphetamine was located in the search of Mr Waqairawaqa’s vehicle. No methamphetamine was located in the safe when it was opened. Further, the word “methamphetamine” does not appear in any of the text messages or any of the Wickr messages, that despite having the text exchange of 8 and 9 March 2023 in late April of 2023, the police did not take any action on those text messages until December 2023. [Counsel] poses the question: “Well, if the police took that long to act, is it because they simply did not know what was being talked about?” When they did get around to getting search warrants which they executed in December 2023, they did not just specify that the search warrants were for methamphetamine; they also referred to MDMA as being a subject or an item that they were searching for. [Counsel] refers to the references to rock and rock shard, that they could also be references equally to MDMA, not only methamphetamine, so she asks you to look very carefully at the evidence of the Crown expert, Detective Sergeant Burborough. The reference to money in the Wickr messages, it is submitted that they could equally apply to MDMA or cocaine, so they are not specific to methamphetamine.
It is not suggested, nor could it be, that the defence case was not properly put to the jury or that the Judge’s summary was unfair in any respect.
Arguments
On behalf of Mr Waqairawaqa, Ms Dempsey submitted that the police expert, Detective Burborough, by his own admission, lacked specialised knowledge of MDMA.[17] Absent that necessary comparative expertise, he could not offer opinion that the messages related to methamphetamine and not MDMA. In particular, he was not familiar with the MDMA manufacturing process so his opinion that the term “wet” referred to methamphetamine, not MDMA, was not admissible. The other admissible evidence he gave went no further than allowing for the possibility that one of at least two types of controlled drugs were the subject of the messages — MDMA or methamphetamine.[18] As the Detective could not definitively rule out that the language used possibly related to MDMA and two equal inferences were available, the jury was left to improperly speculate on an essential element of the charges.
[17]Ms Dempsey argued that the limits to the Detective’s expertise only became fully apparent during cross‑examination.
[18]Ms Dempsey faintly suggested that a third (less likely) drug possibility, on the evidence, is cocaine. Relevantly, as noted earlier in this judgment, Mr Waqairawaqa’s argument was framed as a challenge to the trial Judge’s refusal to dismiss the charges, in that the exclusion of MDMA as a reasonable possibility was not grounded in admissible expert opinion and should never have formed a basis for declining the s 147 application.
In response, Ms Fenton for the Crown argued that the Detective’s acknowledged lack of in‑depth knowledge of the MDMA manufacturing process did not prevent him from being able to assess the exchange of messages and that he relied on his experience in his review of all the messages collectively. Ms Fenton also pointed out that, not only was there no counterevidence at trial but there is still no evidence to suggest that the Detective’s expert evidence was incorrect.
Discussion
It is common ground that the onus was on the Crown to prove that the controlled drug, which Mr Waqairawaqa was said to have conspired to supply and supplied, was methamphetamine. The jury could only do so if there was evidence that a properly instructed jury could rely on to find proof beyond reasonable doubt that it was methamphetamine. Evidence capable of proving only that methamphetamine was one of two or more other possibilities would not suffice to render the verdict safe.
Did the Detective stray beyond his admitted expertise — s 25 Evidence Act 2006?
It is logical to first address the admissibility of the expert opinion evidence given by the Detective. The focus of this aspect of the challenge relates to his evidence around the term “wet”. Ms Dempsey submitted that the Detective strayed beyond the limits of his expertise when he stated in re‑examination that mixing with “wet” product was not a reference to MDMA but consistent with methamphetamine. In support of her submission, she highlighted that in cross‑examination the Detective acknowledged he was “unsure” of the form which MDMA took during manufacture. She argued that purporting to rule out the application of the term “wet” to MDMA without the requisite comparative knowledge or experience meant that the opinion evidence did not meet the substantial helpfulness threshold required by s 25 of the Evidence Act and was inadmissible.[19]
[19]Evidence Act 2006, s 25 provides that an opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact‑finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding (emphasis added).
Ms Fenton contended that the Detective’s knowledge or experience of MDMA was sufficient for him to address the meaning of mixing drugs with “wet”. As such, she argued that it was open to the jury to accept his evidence. She pointed to the lack of (any other) evidence before the jury regarding the process of manufacturing MDMA or even the extent to which MDMA is even manufactured in New Zealand.
The Detective’s general expertise was not challenged at trial. This is unsurprising since the Evidence Act contemplates that witnesses may qualify as experts based on experience, as well as through study or research.[20]
[20]Section 4(1) definition of “expert”.
In Kuru v R, the Supreme Court recently provided guidance on the use of police expert evidence. The context in that case was expert evidence relating to the structure and operation of gangs in New Zealand, but the guidance is of broader application. The Court observed that it is not uncommon for police officers to give opinion evidence about the meaning of particular words and such evidence may be regarded as substantially useful where that information is not within the general knowledge of a jury.[21]
[21]Kuru v R, above n 8, at [45] and [50] per Winkelmann CJ.
Among other things, the Court in Kuru cautioned that police witnesses must be especially careful to include any material that may run counter to or qualify their evidence because of the risk that juries may place too much weight on expert evidence.[22] Moreover, the defence should not have to call their own experts to raise qualifications or limitations that ought to have been raised by the prosecution expert.[23]
[22]At [138] and [147] per Glazebrook J.
[23]At [149] per Glazebrook J.
We consider that the Detective appropriately identified the limits to his expertise and put it in context of his experience in the local area.[24] Those limits related to manufacture of MDMA rather than lack of familiarity with MDMA offending. The evidence which emerged in re‑examination set out above at [38] is problematic if taken in isolation. However, the more realistic impression is that the Detective was considering the term “wet” as just one of multiple indicia which collectively, and in context, enabled him to form the conclusion that the drug under discussion was methamphetamine. He had already made clear the importance of considering the whole context of surrounding message conversations when interpreting coded language.
[24]The characteristics of the drug trade in the Bay of Plenty, given Mr Waqairawaqa’s location, was one of the relevant background matters because it provided context.
When seen in that light, we do not consider that the Detective’s expert opinion failed to meet the threshold under s 25 or is otherwise inadmissible.
Did the expert evidence lead to a miscarriage of justice?
The Crown had to make the jury sure that the drug at issue was methamphetamine. We consider that the expert evidence did provide a sufficient basis for the jury’s finding. Our reasons follow.
We begin by repeating the uncontroversial point that all the evidence must be considered as a whole and that isolating individual words and texts without regard to broader context potentially distracts from the overall picture. In short, each flag identified by the police expert did not have to individually justify the conclusion that the drug was methamphetamine. Rather, it was the overall combination pointing to that conclusion which mattered.
Illustratively, when cross‑examining the Detective, defence counsel put to him that reference to a weight cannot be specific to a drug. In response he said:
It would depend on the drug, like, an ounce of MDMA is very uncommon for example, but in answer to your question, if the message was purely just requesting, or talking about a weight, that on its own could be difficult to distinguish. As I say, some weights are common with some drug types.
The Detective’s point was that a random one‑off text in isolation referring to weight would not be able to be attributed to a drug. This evidence underscores the reasoning that to focus on single texts or individual words without regard to the wider context of messages and circumstances can be artificial and unhelpful.
Ms Dempsey submitted that the high point of the Detective’s evidence was that he had not seen certain language or slang used in relation to drugs other than methamphetamine. She argued that this was of lesser probative value than had he given evidence that the particular language or slang is not commonly used in relation to all (or other) controlled drugs. We disagree with Ms Dempsey’s suggestion that the way in which the Detective framed his evidence in this respect did not illustrate his knowledge, rather only that he had not seen it. Instead, we take the view that when the Detective’s expertise is anchored in his experience, the distinction Ms Dempsey seeks to make is without a difference.
Similarly, we do not accept that the Detective’s lack of awareness of a crystal form of MDMA (assuming for present purposes that there is a crystal form) means that he did not or could not make any definitive statements that methamphetamine was the indicated controlled drug.[25] While accepting that the defence was not required to call counterevidence, the submission lacks an evidential foundation.
[25]Ms Dempsey phrased this submission in a different way; that the Detective did not or could not make any definitive statements that MDMA was not the indicated controlled drug.
The proposition that the Detective was so unfamiliar with MDMA that he was unable to exclude a plausible alternative explanation that the controlled drug under discussion was MDMA is not accepted. While he said he was not an MDMA expert, he did not say he was unfamiliar with policing MDMA. Instead, he explained that Rotorua is an area with high methamphetamine use and therefore it featured predominantly in drug investigations in that area, hence his expertise in that particular drug. He said that MDMA was present in Rotorua but less typically used. This explanation is consistent with the guidance in Kuru that an expert should clearly identify limits to expertise. However, those limits do not support the suggestion that the Detective lacked knowledge of MDMA at all.
We consider that the Detective appropriately identified the limits to his expertise and did not claim any expertise he did not have. On the contrary he was careful to put his evidence in context.
In sum, we find there was a proper route for a reasonable jury to convict
Mr Waqairawaqa and no evidential basis to say that there was a plausible alternative that the substance was not methamphetamine. No miscarriage of justice arose.
Result
The application for an extension of time to appeal is granted.
The appeal is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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