Wong v The Queen
[2014] NZCA 240
•13 June 2014 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA70/2014 [2014] NZCA 240 |
| BETWEEN | THYSSEN CARTER WONG |
| AND | THE QUEEN |
| Hearing: | 28 May 2014 |
Court: | Stevens, Courtney and Lang JJ |
Counsel: | S J Gray and C G Wright for Appellant |
Judgment: | 13 June 2014 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Mr Wong faced charges in the indictable jurisdiction of the District Court for being in possession of methamphetamine for supply; and supplying methamphetamine. The jury found him guilty on the charge of being in possession of methamphetamine for supply, but not guilty on the charge of supplying methamphetamine. On 21 January 2014, Judge Sinclair sentenced Mr Wong to seven months home detention.[1]
[1]R v Wong DC Auckland CRI-2012-090-001401, 21 January 2014 (Notes of Judge P Sinclair on Sentencing).
Mr Wong appeals against conviction on the ground that the jury’s verdicts were inconsistent with each other. He also contends that the Judge failed to direct the jury adequately regarding the manner in which they should draw inferences when reaching their verdicts.
Background
On the evening of 28 February 2012, Mr Wong was riding a motorcycle when he was pulled over by a police patrol vehicle. One of the officers saw Mr Wong get off his motorcycle and walk over to the grass verge, where he dropped something on the ground. The officer approached Mr Wong and found a flick-knife lying on the ground. The police officer then arrested Mr Wong, and searched him and his motorcycle. In a bag strapped under the pillion seat of the motorcycle the officer found two plastic zip lock bags containing a total of 2.6 grams of methamphetamine. The black bag also contained six new and unused zip lock bags of a type commonly known as “point bags”. These are often used by methamphetamine dealers to package .1 of a gram of methamphetamine. Mr Wong was also found to be wearing a money belt containing a cut down drinking straw and $6,530.00 in cash.
The police then transported Mr Wong to the police station, where they searched him again. On this occasion they found three cellphones, a bank deposit slip recording a deposit in the sum of $2,500, a small bottle containing a liquid giving off a strong chemical smell and a small set of electronic scales with white crystal residue on them. All of these items were found in Mr Wong’s jacket and in a Camel cigarette packet that Mr Wong was carrying under his top.
The police subsequently executed a search warrant in respect of Mr Wong’s home, but the only items of interest that they located there were four empty zip lock bags and some needles.
The respective cases at trial
The Crown opened and closed its case against Mr Wong on the basis that he was a drug dealer, and that he had acquired the cash found in his possession from earlier sales of methamphetamine. The Crown contended that all of the items found in Mr Wong’s possession were consistent with his status as a drug dealer. It therefore argued that Mr Wong intended to sell or supply at least some of the methamphetamine found in his possession to third parties.
Mr Wong gave evidence denying that he intended to sell any of the methamphetamine found in his possession to others. He maintained that it was all for his own use. He said that he was a long-standing and heavy user of methamphetamine, and that his use of the drug had increased after his mother died in October 2011following a lengthy illness.
Mr Wong said he used the electronic scales to weigh individual doses of methamphetamine. He did this in order to ensure that he was using the correct quantity of methamphetamine for each dose. After weighing the methamphetamine he would place it in a clean zip lock bag using the cut down straw that the police found in his money belt. He would then dissolve the methamphetamine in water that he inserted into the zip lock bag using the dropper the police found in his possession. After dissolving the methamphetamine Mr Wong would then inject it intravenously using a needle. He would then throw away both the bag and the needle.
The Crown had earlier called a police officer to give expert evidence regarding the use and sale of methamphetamine. This was obviously designed to persuade the jury that the items found in Mr Wong’s possession were consistent with the Crown’s stance that he was an active dealer in methamphetamine. Counsel for Mr Wong was able to extract concessions from this witness confirming that the items found in Mr Wong’s possession were also consistent with him being a heavy user of methamphetamine, and that the process he used to inject himself with methamphetamine was not unusual for a drug addict.
Mr Wong explained that the cash found in his possession came from an inheritance he had received from his late mother’s estate in the months leading up to his arrest. He also produced bank statements establishing that he had received and withdrawn significant sums of cash from his bank account during that period. A brief of evidence from the lawyer who administered Mr Wong’s mother’s estate was also read to the jury by consent. This confirmed Mr Wong’s evidence regarding the money he had inherited from his mother prior to his arrest. Mr Wong also told the jury that the bank deposit receipt found in his possession related to a payment he had made to his lawyer.
Mr Wong told the jury that on the day of his arrest he had been considering the purchase of a second hand motor vehicle, and the cash found in his possession was to be used for that purpose. He also called a witness who confirmed that Mr Wong had looked at her vehicle on the day he was arrested, and that he had told her he was on the way to look at another vehicle when he left her address shortly before being stopped by the police.
Mr Wong also gave an explanation for the fact that he was in possession of three cellphones when he was stopped by the police. He said he had just purchased a new cellphone, but had not yet transferred the contacts over to that device from his old cellphone. He had kept his old cellphone for that purpose. He said he had purchased the third cellphone for his son.
Were the verdicts inconsistent?
Counsel for Mr Wong contends that the Crown ran its case at trial on an “all or nothing” basis. In other words, the Crown sought to persuade the jury to reject Mr Wong’s evidence and find him guilty on both charges or, alternatively, to find him not guilty on both charges. Counsel also submitted that the defence case provided the jury with an alternative scenario that did not leave any room for different verdicts on the two charges that Mr Wong faced.
As counsel for the Crown points out, however, the Supreme Court in B (SC12/2013) v R has recently reiterated the principles that apply when verdicts are challenged on the basis that they are inconsistent.[2] In that case, the majority of the Court said:[3]
[2]B (SC12/2013) v R [2013] NZSC 151.
[3]At [68] per Arnold J, giving judgment for McGrath, Glazebrook and Arnold JJ, referring to MacKenzie v R (1996) 190 CLR 348 at 365.
(a) There is a distinction between cases involving legal inconsistency and those involving factual inconsistency. Legal inconsistency occurs when two verdicts cannot, as a matter of law, stand together. Examples are where a jury convicts a person of both an attempt to commit an offence and the completed offence or as the thief and the receiver of the same property on the same occasion. Factual inconsistency occurs where, given the evidence, two verdicts cannot stand together.
(b) Factual inconsistency can arise either between verdicts involving the same accused or between verdicts involving different persons charged in connection with related events …
(c)In relation to factual inconsistency arising from "guilty" and "not guilty" verdicts on a multiple count indictment against one defendant, the test is one of "logic and reasonableness". As the Court of Appeal said in R v Irvine:[4]
The question which we must ask ourselves is whether the acquittal on count one, in all the circumstances of this particular case, renders the verdict of guilty in respect of count two unsafe, in the sense that no reasonable jury could have arrived at different verdicts on the two different counts.
(d) Courts are reluctant to conclude that jury verdicts are inconsistent, both because the jury's function must be respected and because there is general satisfaction with the way juries perform their role. If there is some evidence to support the verdict said to be inconsistent, an appellate court will not usurp the jury's function by substituting its view of the facts for that of the jury
…
(f)The obligation to establish inconsistency rests with the person challenging the conviction. Where inconsistency is established, the court must make such consequential orders as the justice of the case requires.[5]
[4]R v Irvine [1976] 1 NZLR 96 (CA).
[5]See also R v Pittiman 2006 SCC 9, [2006] 1 SCR 381 at [14].
We consider that the jury’s verdicts in the present case are readily explicable having regard to the evidence upon which the Crown relied in relation to each charge. Importantly, the supply charge was based to a large extent on the fact that Mr Wong was found in possession of a significant quantity of cash. The Crown also relied on the discovery of the drugs and drug-related paraphernalia as supporting the inference that the cash in Mr Wong’s possession came from the sale of drugs. Without more, however, those items could not establish that he had actually sold methamphetamine in the past. The cash provided the evidential basis that enabled the Crown to make that allegation. Without it, the supply charge could not succeed.
The Crown case on the supply charge therefore came unstuck when Mr Wong was able to explain how he came to be in possession of such a large quantity of cash through legitimate means. That evidence was obviously sufficient to leave the jury in a state of reasonable doubt regarding the supply charge.
The Crown case in respect of the possession charge was different, because it did not rely wholly or even substantially upon the existence of the cash found in Mr Wong’s possession. The Crown could point to the fact that Mr Wong was in possession of significantly more methamphetamine than would usually be necessary to enable a user of methamphetamine to maintain his or her drug habit. It could also rely upon the fact that Mr Wong was found in possession of other items commonly associated with the supply of methamphetamine. These included the electronic scales and the new and unused point bags. Although Mr Wong had provided an explanation in relation to each of those items, the jury may have regarded these as being significantly less cogent than his explanation regarding the source of the cash. Moreover, although the concessions obtained from the police drugs expert were helpful to Mr Wong’s case, they were necessarily couched in the abstract. They could not relate to Mr Wong personally.
All of these factors persuade us that the two verdicts cannot be regarded as inconsistent. The jury was entitled to conclude that the Crown had proved beyond reasonable doubt that Mr Wong was in possession of at least some of the methamphetamine for the purposes of supply, but be left in a state of doubt as to whether he had sold methamphetamine in the past.
This ground of appeal fails as a result.
Did the Judge adequately direct the jury regarding the manner in which they were to draw inferences?
The Judge provided the jury with a question trail at an early stage of her summing-up.[6] When she went through the questions relating to the charge alleging that Mr Wong was in possession of methamphetamine for the purposes of supply, she told the jury that the main issue was whether they could be sure that Mr Wong had possession of the methamphetamine for the purpose of supplying it to another person. After briefly summarising the Crown and defence cases, the Judge gave the jury the standard tripartite direction regarding the manner in which they should approach the evidence given by Mr Wong at trial.[7]
[6]R v Wong DC Auckland CRI-2012-090-1401, 12 November 2013 (Summing Up of Judge P Sinclair) at [2].
[7]R v Wong, above n 6, at [14]–[17].
The Judge then traversed the Crown and defence cases in relation to both charges in greater detail. She opened her discussion of the Crown case by observing that the Crown relied upon the existence of the cash and drug-related paraphernalia as giving rise to the inference that Mr Wong was dealing in methamphetamine. She then continued:[8]
[43] There is nothing magical about drawing inferences, it is simply a process by which you take facts that you find have been reliably established and then determining whether you can draw any conclusions safely from them. That is something you do every day. The only caution that I need to give you about this process is that any conclusion must be logical and rational, it must not be speculation or guess.
[44] The Crown says to be carrying such a large amount of cash, combined with all the drug paraphernalia, is just too much of a coincidence; that it must point to supplying. The Crown add that the evidence of all the withdrawals of money from Mr Wong's account lends further support – that Mr Wong has been involved in the supply and is involved in the supply of methamphetamine.
[45] Similarly, in count 3 the Crown says all these items – the straw, the methamphetamine itself, point bags, scales, phones on Mr Wong, point to one thing – that he was supplying. The Crown acknowledge Mr Wong did not admit to supplying the drugs. He told Constable Borich and [said] in evidence that the drugs were for his personal use and the Crown acknowledge that there is no other direct evidence of supply but when you combine the large amount of cash and all the items found on Mr Wong's possession the Crown say you must come to the inescapable conclusion that Mr Wong was supplying. Whether you draw this inference is for you, as are all matters of fact.
[8]R v Wong, above n 6.
Immediately following these passages, the Judge referred in detail to the defence submission that the factors relied on by the Crown did not mean that Mr Wong was a drug dealer. The Judge then gave the jury the following directions regarding the use of circumstantial evidence:[9]
[48] So, in conclusion, for counts 2 and 3, the Crown case for both of these charges as to whether Mr Wong had been supplying meth and had possession of methamphetamine for purposes of supply, depends largely on what is described as circumstantial evidence. There is no direct evidence such as an admission, confession or any other evidence of supply.
[49] There is nothing inherently second rate or dubious about circumstantial evidence. It simply involves the process to which I’ve already referred – that of drawing inferences or conclusions from evidence you regard as being reliable. When a series of reliably established facts connect with each other in a way that carries conviction in your mind that can result in proof beyond reasonable doubt. Taken individually each fact may not prove much at all, but if, when you put them together, you find a series of otherwise inexplicable coincidences that, as a matter of common sense and logic, the only conclusion you can come to is that he is guilty, then that will be sufficient. But, if the cumulative effect of the individual facts does not reach that standard and still leaves gaps, then the evidence does not amount to proof beyond reasonable doubt. It is the cumulative effect that is important.
[50] The analogy is often drawn with a rope – a rope is made up of many strands of fibre. Separately the strands may not support much weight at all but sufficient of them woven together will do so. So it is with circumstantial evidence.
[51] It is for you to say whether you are satisfied that there is such a combination of facts and evidence that you are satisfied beyond reasonable doubt of guilt. The Crown say the large amount of money and number of items and paraphernalia found on Mr Wong provide sufficient strands that you can make that rope and be satisfied beyond reasonable doubt that Mr Wong was supplying. The defence say, however, the drugs and items simply point to personal use and there is nothing else to support that contention.
[9]R v Wong, above n 6.
The Judge then said:
[52] The ultimate issue in respect of this aspect of the case is whether or not on the totality of all the evidence you are satisfied beyond reasonable doubt that Mr Wong supplied methamphetamine on or before the 28th of February and that he was in possession of methamphetamine for the purposes of supply. So again you need to weigh up all of the evidence you have heard in the past day and a half, and, again, as I've said to you earlier, apply your collective common sense in assessing whether the Crown has proven these charges to the requisite standard.
Counsel for Mr Wong accepts that the Judge was not required to tell the jury that where two inferences were of an equal weight, they should draw the inference favourable to Mr Wong.[10] That was a proper concession to make, because this Court has made it clear in cases such as R v Puttick, R v Hart and R v Te Pou that such a direction is not required as a matter of law and is likely to prove unhelpful.[11]
[10]This type of direction is sometimes referred to as a “Hodge” direction, because it is similar to a direction that was the subject of R v Hodge (1838) 2 Lew Credit Committee 227.
[11]R v Puttick (1985) 1 CRNZ 644 (CA); R v Hart [1986] 2 NZLR 408 (CA); R v Te Pou CA37/04, 24 August 2004 at [39].
Counsel for Mr Wong submits, however, that the position was finely balanced in the present case, because the evidence on the possession charge permitted inferences to be drawn both in favour of the Crown and in favour of the defence. For that reason counsel contends that the Judge ought to have provided the jury with additional assistance regarding the manner in which they should approach the drawing of inferences.
We do not accept this submission. First, it is not possible for this Court now to say that the case was finely balanced. It is entirely possible that the jury rejected Mr Wong’s evidence in relation to issues other than the source of the cash, and were firmly of the view that the remaining factors relied upon by the Crown were sufficient to establish his guilt on the possession charge. More importantly, however, we consider that the Judge provided the jury with a balanced and helpful summing up. It fully described the factors relied upon by both the Crown and the defence, and the inferences that each asked the jury to draw. The Judge also emphasised that the jury could not find Mr Wong guilty unless the factors relied upon by the Crown left them sure of his guilt. We do not consider the Judge was required to go any further.
Even assuming the argument for Mr Wong is correct, however, it is difficult to see what further assistance the Judge could have given the jury. During argument, we asked counsel for Mr Wong to formulate the direction that she contended the Judge ought to have given. After considerable difficulty, counsel advised us that the direction would have been to the effect that, if the jury were not satisfied they could rely upon one or more of the factors relied upon by the Crown, they should consider the remaining evidence in order to determine whether they were sure that the Crown had proved the charge beyond reasonable doubt. We do not consider, however, that such a direction would have been of any material assistance to the jury in the present case. In many ways it merely repeats advice the Judge had already given the jury, including the principle that it was a matter for them to accept or reject evidence as they saw fit. The jury could also have been under no misapprehension as to the fact that the factors relied upon by the Crown needed to leave them sure of guilt before they could bring in a guilty verdict.
We therefore do not consider the Judge erred in the manner in which she directed the jury regarding the approach they were to take when drawing inferences from the evidence. This ground of appeal also fails.
Result
The appeal against conviction is dismissed.
Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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