Gilfedder and Others v R

• Jurisdiction: New Zealand
• Judge: Dobson J
• Judgment Date: 11 September 2013
• Neutral Citation: [2013] NZCA 426
• Docket Number: CA547/2012 CA679/2012
• Court: Court of Appeal
• Date: 11 September 2013

Between

Joan Mary Gilfedder

Appellant

and

The Queen

Respondent

Between

Wati Heemi

Appellant

and

The Queen

Respondent

Between

Christine Gordon

Appellant

and

The Queen

Respondent

[2013] NZCA 426

Court:

Randerson, Courtney and Dobson JJ

CA547/2012

CA594/2012

CA679/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeals against convictions and sentence on an indictment containing 85 counts relating to manufacture and distribution of significant quantities of methamphetamine (“meth”)(Class A controlled drug) — appellants were three of seven accused who were convicted after a jury trial — most significant offender was Van de Ven (“V”) — alleged that V had supplied meth to four re-sellers each of who was alleged to have a pattern of supplying meth to their own customers — preponderance of Crown evidence comprised records of text and call data, together with a log of frequent visitors to V's property — primary issue on appeals a related to adequacy of direction on the proper use of propensity evidence — whether there ought to have been a direction about evidence of visits by the appellants to the property and communications between the appellants and V on occasions other than the particular days on which the Crown alleged the offending occurred.

Counsel:

P L Borich for Gilfedder

M M Wilkinson-Smith for Heemi

H E Juran for Gordon

B D Tantrum and B Finn for respondent

• A Ms Gilfedder's appeal against conviction is dismissed..

• B Ms Gordon's appeals against conviction and sentence are dismissed..

• C Mr Heemi's appeals against conviction and sentence are dismissed..

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Dobson J)

Table of Contents

	Para No
Introduction	[1]
Grounds of appeal	[10]
Ms Gilfedder's appeal	[13]
Absence of propensity warning	[13]
Counsel's submissions	[13]
Discussion	[25]
Particulars of offences required to be proven?	[42]
“Remainder” (of any previous supply) should be expressly excluded	[51]
Defence not adequately put	[62]
Ms Gordon's appeal	[65]
Absence of propensity warning	[65]
“Remainder” argument/lack of balance	[74]
Appeal against sentence	[80]
Mr Heemi's appeal	[91]
Absence of propensity warning	[91]
Counsel's submissions	[93]
Discussion	[98]
Inadequate parties direction	[105]
Unbalanced summing-up in relation to count 42	[112]
Appeal against sentence	[117]
Alternative Crown response: reliance on post-conviction admissions	[123]
Summary	[134]

Introduction

1 The present appellants were three of seven accused who were convicted after a jury trial before Woolford J in the High Court at Auckland that took some eight and a half weeks between April and June 2012. The indictment contained some 85 counts 1 relating to the manufacture and distribution of significant quantities of methamphetamine. The Crown case was that the most significant of the offenders, a Mr Van de Ven, arranged for acquisition of pre-cursor materials and supervised the manufacture of the methamphetamine with the participation of three others, on various of the occasions on which methamphetamine was manufactured. Mr Van de Ven then supplied the methamphetamine to four re-sellers of methamphetamine, each of whom was alleged to have a pattern of supplying methamphetamine to their own customers.

2 Mr Van de Ven's activities occurred at a residential property in Jupiter Street, Papakura and at another property at Hunua. The Crown case was that the re-sellers were supplied with methamphetamine at Jupiter Street.

3 Mr Heemi was one of those charged with participation in the manufacturing processes. He was convicted on three counts of manufacturing methamphetamine and sentenced to nine years and six months imprisonment. Mr Heemi has appealed both his convictions and sentence.

4 Ms Gilfedder was convicted on 12 counts of possession of methamphetamine for supply. She was sentenced to two and a half years imprisonment. She appeals against her convictions.

5 Ms Gordon was convicted on 14 counts of possession of methamphetamine for supply. She was sentenced to three years and six months imprisonment. Ms Gordon appeals against her convictions and sentence. 2

6 The movements of the accused had been monitored in a police operation between December 2009 and April 2010. Surveillance was maintained on Mr Van de Ven's property in Jupiter Street and interception warrants were used to record text and call data from cell phones used by various of the accused. 3

7 At trial, physical evidence seized included pre-cursor materials and equipment used in the manufacture of methamphetamine found at the Hunua property, as well as pre-cursor chemicals and equipment, snaplock bags, cash and methamphetamine found at Jupiter Street. However, the preponderance of the Crown evidence comprised the records of the text and call data, together with a log of the frequent visitors to the Jupiter Street property. The text data was adduced by the Crown in 21 A3 sized booklets, mostly arranged chronologically but with divisions for the communications relied on in relation to counts for manufacturing, and sections for counts relating to charges of “distribution”. The text data was interspersed with chronological entries recording arrivals and departures from Jupiter Street.

8 The counts against Ms Gilfedder and Ms Gordon were structured in the indictment on the same basis, in that every charge of possession of methamphetamine for supply appeared immediately after a charge against Mr Van de Ven for supplying methamphetamine to the respective accused on the same date. The Crown case was something of a mosaic (and described as such by Crown counsel), with components of the evidence seeking to establish Mr Van de Ven's part in successive manufactures of methamphetamine, related to a pattern of supply of the drug by him to his “distributors”. The jury convicted Mr Van de Ven of supplying methamphetamine to each of Ms Gilfedder and Ms Gordon on each of the occasions where they faced companion charges of being in possession of the drug for the purposes of supply. 4 Mr Van de Ven has not appealed against his convictions.

9 During the trial, the Judge prepared a document described as “Summary of Crown Core Data”, and conferred with counsel about it before it was provided to the jury. It listed the principal references in the A3 booklets of evidence that related to each of the counts, together with a shorthand description of the events that were referred to.

Grounds of appeal

10 The grounds of appeal against conviction varied but each raised as a principal ground that a miscarriage occurred through lack of an adequate direction on the proper use of propensity evidence. Primarily, it was argued that there ought to have been a direction about evidence of visits by the appellants to the Jupiter Street address and communications between the appellants and Mr Van de Ven on occasions other than the particular days on which the Crown alleged the offending occurred.

11 In addition, each appellant raised grounds of appeal specific to their cases which we detail below.

12 The sentence appeals by Ms Gordon and Mr Heemi are advanced on the grounds that their sentences were manifestly excessive.

Ms Gilfedder's appeal

Absence of propensity warning

Counsel's submissions

13 For Ms Gilfedder, Mr Borich suggested that the A3 booklets of evidence had been prepared on behalf of the Crown at a point when additional charges (including representative charges) of possession for supply, or drug dealing other than the counts eventually faced by Ms Gilfedder, were included in the indictment. Mr Tantrum did not dispute this point.

14 Mr Borich accepted that the Crown's circumstantial case against Ms Gilfedder legitimately included communications between her and other people, including Mr Van de Ven, on dates other than the 12 specific occasions in respect of which she faced charges. The content and context of cryptic or coded communications could be better understood by considering the whole sequence of such communications, rather than isolated exchanges on the dates to which charges related. Further, the relevance of her visits to Jupiter Street on the dates to which charges related was appropriately considered within the pattern of many more visits on other days. That pattern of visits was part of the circumstantial evidence.

15 However, Mr Borich argued that without an appropriate propensity warning, the jury could also use the ongoing pattern of communications, and frequency of other visits by Ms Gilfedder to Jupiter Street, for impermissible purposes. This arose because the jurors would be likely to reason that indications of Ms Gilfedder arranging to acquire methamphetamine and on-sell it on other occasions, as suggested by items in the intercepted communications, made it more likely that she was in possession of methamphetamine for the purposes of supply on the dates to which the specific counts related.

16 Similarly, that the frequency of her visits to Jupiter Street, when the evidence against Mr Van de Ven suggested ongoing dealing in methamphetamine, raised the prospect of impermissible reasoning that the overall pattern of behaviour made it more likely that Ms Gilfedder was acquiring methamphetamine from him on the dates to which the specific charges related.

17 Mr Borich relied on the analysis of the circumstances in which a direction on propensity evidence is required, as considered by the minority in Mahomed v R. 5

18 He characterised that analysis as requiring a direction in three circumstances:

• (a) where the Crown is relying on propensity reasoning and in doing so is invoking ideas about coincidence or probability;

• (b) where the evidence involves aspersions on the character of an accused in...