Fakaosilea v R

• Jurisdiction: New Zealand
• Judge: Courtney J
• Judgment Date: 11 June 2024
• Neutral Citation: [2024] NZCA 218
• Court: Court of Appeal
• Docket Number: CA686/2022 CA17/2023

Between

Seiana Fakaosilea

Appellant

and

The King

Respondent

Between

Richard Pelikani

Appellant

and

The King

Respondent

Between

Jie Huang

Appellant

and

The King

Respondent

[2024] NZCA 218

Court: Courtney, Whata and Downs JJ

CA686/2022

CA728/2022

CA17/2023

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Evidence, Criminal Sentence — appeals against convictions and sentences for conspiring to import 600 kgs of methamphetamine — discounts for youth and rehabilitation prospects — Misuse of Drugs Act 1975

Counsel:

J J Rhodes and K E Tuialii for Appellant in CA686/2022

S L McColgan for Appellant in CA728/2022

G J Newell and C G Farquhar for Appellant in CA17/2023

B J Thompson for Respondent

The appeals against convictions were dismissed. The appeals against sentences were allowed.

• A Mr Huang's appeal against conviction is dismissed.

• B Mr Fakaosilea's and Mr Pelikani's appeals against conviction are dismissed.

• C Mr Fakaosilea's appeal against sentence is allowed. The sentence of 13 years and two months' imprisonment is set aside and substituted with a sentence of 10 years and eight months' imprisonment.

• D Mr Pelikani's appeal against sentence is allowed. The sentence of four years and 11 months' imprisonment is set aside and substituted with a sentence of three years and ten months' imprisonment.

JUDGMENT OF THE COURT

[REDACTED]

REASONS OF THE COURT

(Given by Courtney J)

Table of contents

	Para No.
INTRODUCTION
The convictions and grounds of appeal	[1]
The trial
A brief chronology	[6]
The Crown case
The charges	[19]
The evidence	[22]
The relationship and other circumstantial evidence	[24]
The “conspiracy conversation” between Mr Fakaosilea and Mr Huang on 9 March at 1.16 pm	[32]
The “Mango conversation” between Mr Fakaosilea and Mr Collins-Haskins on 9 March 2020 at 7.21 pm	[36]
Mr Fakaosilea's and Mr Pelikani's movements and conversation on 9 March 2020	[40]
Mr Fakaosilea's and Mr Pelikani's movements and conversation on 10 March 2020	[41]
The “hongfulu” and other conversations, and Mr Fakaosilea's movements on 16 March 2020	[45]
Mr Huang's defence	[49]
MR HUANG'S CONVICTION APPEAL	[50]
The first ground of appeal: the s 9 statement
The issue	[51]
The prosecutor's use of the propensity evidence	[62]
The Judge's summing up	[69]
The effect of admitted fact 7	[73]
Second ground of appeal: the Mango conversation
The issue	[79]
Was there error by trial counsel and/or the prosecutor and/or the trial Judge in relation to the Mango conversation	[82]
Third ground of appeal: reference to “occa's” in the particulars of charge 4	[89]
Was there a miscarriage of justice?	[95]
MR FAKAOSILEA'S AND MR PELIKANI'S CONVICTION APPEALS
First ground of appeal: disclosure of the tracking data
How this issue arose	[104]
The voir dire and the Judge's ruling refusing applications for a mistrial or adjournment	[110]
Appeal	[118]
Second ground of appeal: unreasonable verdicts
The correct approach to this issue	[129]
The s 147 application	[131]
Were the verdicts on the conspiracy charges against Mr Fakaosilea unreasonable?	[133]
Was the verdict on the conspiracy charge against Mr Pelikani unreasonable?	[144]
THE SENTENCE APPEALS	[155]
Disputed facts	[158]
Mr Fakaosilea
The sentence	[160]
Starting point	[164]
The quantity of class A drugs	[165]
Mr Fakaosilea's role	[171]
Uplift for the cocaine charge	[181]
Uplift for the conspiracy charges	[185]
Uplift for offending on bail	[191]
Discounts for youth and prospects of rehabilitation [Redacted]	[194]
[Redacted]	[202]
[Redacted]	[208]
Result	[213]
Mr Pelikani	[216]
Starting point	[220]
Discount for personal factors	[224]
[Redacted]	[228]
Result	[229]
Result	[232]

INTRODUCTION

The convictions and grounds of appeal

1 In 2020, the Police National Organised Crime Group began an investigation into the commercial supply of drugs in New Zealand. More than 50 charges were laid against a group of 14 people. Ultimately four, including the appellants,

Seiana Fakaosilea, Richard Pelikani and Jie Huang, stood trial. Following a three-week jury trial during July and August 2022 before Campbell J in the High Court at Auckland, all three appellants were convicted of conspiring to import 600 kilograms of methamphetamine from South Africa. 1 Mr Fakaosilea and Mr Huang were also convicted of conspiring to import an unknown amount of methamphetamine from Fiji. 2

2 In addition: Mr Fakaosilea was found guilty of one charge of possessing methamphetamine for supply 3 and pleaded guilty to two charges of possession of a class A drug for supply 4 and four charges of supplying a class A drug; 5 Mr Pelikani pleaded guilty to one charge of possession of a class A drug for supply; 6 Mr Huang was found guilty of one charge of supplying methamphetamine 7 and pleaded guilty to one charge of unlawful possession of a firearm, 8 one charge of possession of cannabis for sale 9 and one charge of money laundering. 10

3 Mr Fakaosilea was sentenced to 13 years and two months' imprisonment. 11 Mr Pelikani was sentenced to four years and eight months' imprisonment. 12 Mr Huang was sentenced to six years and three months' imprisonment. 13

4 All three appellants appeal against their convictions, asserting a miscarriage of justice. 14 This Court must allow the appeals if it is satisfied that a miscarriage of justice has occurred for any reason. A miscarriage of justice includes any error, irregularity, or occurrence, in or in relation to or affecting the trial that: created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity. 15 As to whether there was a real risk that the outcome of the trial was affected, the Court must assess the potential risk of a different outcome resulting from the identified error, irregularity or occurrence. 16 The risk must be a real one, the question of which requires the Court to consider whether there is a reasonable possibility that another verdict would have been reached. 17

5 Mr Huang says that he suffered a miscarriage of justice because: 18

• (a) Trial counsel signed an admission of facts under s 9 of the Evidence Act 2006, which included a statement that Mr Fakaosilea had obtained “ten ounces (‘occa's’) from Mr Huang on at least three occasions prior to 9 March 2020”. This evidence, although inadmissible against Mr Huang, was nevertheless relied on by the Crown in advancing its case against Mr Huang.

• (b) Trial counsel did not object to evidence being adduced of a conversation between Mr Fakaosilea and Mr Pelikani (the Mango conversation), in which Mr Fakaosilea referred to “ripping” someone called “Mango” for “occa's” (ounces). The Crown asserted that Mr Huang was Mango. This conversation was accepted by the Crown as inadmissible against Mr Huang but was nevertheless used to his detriment.

• (c) The particulars of the charge of supplying methamphetamine (charge four) referred to Mr Huang supplying “occa's” (ounces) when that word had not been used in any admissible evidence against Mr Huang. It had only been used in an intercepted conversation that was inadmissible against him.

6 Mr Fakaosilea and Mr Pelikani say that a miscarriage of justice occurred because the trial Judge refused to either declare a mistrial or adjourn the trial as a result of the police failing to disclose the raw data on which evidence obtained through tracking devices was based.

7 In addition, Mr Fakaosilea and Mr Pelikani say that the jury's verdicts against them on the conspiracy charges were unreasonable. 19 A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. 20

8 Mr Fakaosilea and Mr Pelikani also appeal their respective sentences of 13 years and two months' imprisonment and four years and eight months' imprisonment. They say that the starting points were too high and inadequate discounts were given for personal factors. Mr Fakaosilea complains further that his sentence should not have been uplifted for offending while on bail.

9 We issued a results judgment prior to this judgment. 21

The trial

A brief chronology

10 One of the challenges for the appellants and their counsel was the rapidly changing landscape in the weeks preceding the trial. Resolution of charges were being reached progressively. 22 The charge list containing the charges on which the

appellants ultimately stood trial was produced on 17 July 2022, one day before the start of the trial. Counsel were still trying to resolve charges, address aspects of the evidence regarded as problematic and consider whether agreement could be reached on other evidence after the beginning of trial

11 The jury was empanelled on 18 July 2022 but immediately released to allow counsel to address a number of issues that had arisen. The trial resumed on 20 July 2022. That day, Mr Fakaosilea, Mr Pelikani and Mr Huang each entered guilty pleas on some of their charges. The Crown also filed a memorandum advising that agreement had been reached as to which convictions the Crown would adduce as evidence. These included Mr Fakaosilea's guilty plea to the possession for supply charge. A footnote to this memorandum recorded that the Crown would not suggest that this was evidence against Mr Huang. The s 9 statement of agreed facts was not...