The appellant was convicted after jury trial in the District Court before Judge Doherty of one count of conspiracy to supply the class B controlled drug MDMA (ecstasy) between 1 August 2008 and 25 June 2009.[1] He was charged along with four others: Messrs Whittle, Wilkes, David and Dillon. Both Mr Whittle and Mr Wilkes had pleaded guilty prior to trial. Mr David and Mr Dillon were acquitted.
[1]R v Waterworth DC Christchurch CRI-2009-9-9782, 28 January 2011.
The appellant was subsequently sentenced to three years six months imprisonment.[2]
[2] R v Waterworth DC Christchurch CRI-2009-9-9782, 12 May 2011.
He now appeals against both conviction and sentence.
Leave to appeal out of time is not opposed by the Crown. Leave is granted accordingly.

The conviction appeal

The appeal against conviction raises three grounds:
(a)Wrongful admission of propensity evidence of the appellant’s prior convictions for drug dealing;
(b)Wrongful admission of hearsay evidence under s 12A of the Evidence Act 2006; and
(c)The Judge ought to have directed the jury that the Crown’s failure to call Mr Whittle meant they were entitled to infer he would not have assisted the Crown’s case against the appellant.

First ground: propensity evidence

The appellant admitted conspiring to sell the class C drug BZP, but denied conspiring to sell ecstasy. The jury was told this at the outset of the trial. The jury was also told that Messrs Whittle and Wilkes admitted conspiring to sell ecstasy. The sole issue for the jury to determine was whether the drugs the appellant was conspiring to sell were ecstasy or whether he was conspiring to sell only BZP.
The Crown sought to lead evidence of the appellant’s previous convictions for supplying ecstasy in 2005. It proposed to call formal evidence of the convictions along with a statement of admitted facts. The admitted facts showed that the appellant sold ecstasy on a number of occasions in June and July 2005 to a range of purchasers. The evidence also showed, amongst other things, that the appellant was familiar with the price of the ecstasy tablets; negotiated deals with the purchasers; used a “tester kit” to test the content and quality of the ecstasy; used a variety of code names for the tablets; and that he was sourcing the ecstasy from Auckland.
The appellant was convicted for the 2005 offending on 2 November 2006. He was sentenced to four and a half years imprisonment and was released on parole in 2008. The offending which is the subject of this appeal occurred…

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 Waterworth v R

Details

AGLC: Waterworth v R [2012] NZCA 58
Case: [2012] NZCA 58
Decision Date: 2 March 2012

CaseChat Overview and Summary

John Francis Waterworth was convicted in the District Court of conspiring to supply MDMA (ecstasy) between 1 August 2008 and 25 June 2009. He was charged with four others, two of whom had pleaded guilty and two of whom were acquitted. Waterworth now appeals against both his conviction and the sentence imposed. The Crown does not oppose leave to appeal out of time, which is granted. The appeal against conviction raises three grounds: the wrongful admission of propensity evidence of the appellant’s prior convictions for drug dealing; the wrongful admission of hearsay evidence under s 12A of the Evidence Act 2006; and the judge's failure to direct the jury that the Crown's failure to call a co-accused meant they were entitled to infer he would not have assisted the Crown's case against the appellant. The appeal against sentence contends that the appellant was wrongly treated as equally culpable with a co-accused and that the nine-month uplift for the appellant's offending while on parole was improper.

The court found that the propensity evidence was properly admitted as it was highly probative of the identity of the drugs at issue. The court also held that the hearsay evidence of the appellant’s co-conspirators was properly admitted as there was reasonable evidence from which a jury could infer an agreement by the appellant to participate in the supply of ecstasy. The court rejected the argument that the judge should have directed the jury that the Crown's failure to call a co-accused meant they were entitled to infer he would not have assisted the Crown's case against the appellant. As to the sentence, the court found that the appellant was properly treated as equally culpable with a co-accused and that the nine-month uplift for the appellant's offending while on parole was proper. The appeal against both conviction and sentence is dismissed.

The final orders of the Court are that the appeal against both conviction and sentence is dismissed.

Orders