Mckenzie and Miles v R

JurisdictionNew Zealand
JudgeFrench,Goddard,Ronald Young JJ
Judgment Date19 August 2013
Neutral Citation[2013] NZCA 378
Docket NumberCA795/2012
CourtCourt of Appeal
Date19 August 2013
BETWEEN
John Douglas Mckenzie
Appellant
and
The Queen
Respondent
BETWEEN
Adam John Miles
Appellant
and
The Queen
Respondent

[2013] NZCA 378

Court:

French, Goddard and Ronald Young JJ

CA795/2012

CA731/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeals against conviction and sentence on conspiracy to manufacture methamphetamine and possession charges — first appellant convicted of conspiracy — second appellant acquitted on conspiracy but convicted on charges of manufacturing, possession of precursor substances and equipment — Crown adduced as evidence a note from a co-accused which indicated first appellant had financed manufacture of methamphetamine — whether the note written by a co-accused was a statement and should not have been admissible against first appellant under s27 Evidence Act 2006 (“EA”) (Defendants' statements offered by prosecution) — whether s12A EA applied — whether note was hearsay — whether second appellant's manufacturing/possession convictions were incompatible with a not guilty verdict on conspiracy.

Counsel:

J H M Eaton QC and H C Coutts for Appellant

McKenzie R G Glover for Appellant

Miles C J Lange and B Hawes for Respondent

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

  • B Mr Miles' appeals against conviction and sentence are dismissed.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Ronald Young J)

Table of Content

Para No

Introduction

[1]

McKenzie appeal

[4]

Facts

[6]

Grounds of appeal

[16]

The admissibility of the note

[18]

Section 27 of the Evidence Act – the co-defendants rule

[18]

Section 12A of the Evidence Act – the co-conspirators rule

[27]

Was the note an inadmissible hearsay statement?

[34]

Section 8 of the Evidence Act

[42]

Unreasonable verdict

[48]

Summary

[51]

Miles appeal

[52]

Background facts

[53]

Appeal against conviction

[60]

Consistency of verdicts and adequacy of evidence

[61]

Time for deliberation

[66]

Intention

[70]

Appeal against sentence

[77]

Was the sentence manifestly excessive?

[80]

Was the sentence unfairly higher than comparable co-offenders?

[87]

Summary

[96]

Introduction
1

Twelve accused originally faced an indictment with over 80 counts relating to drug offending, possession of firearms and other miscellaneous offending. By trial only five accused were left (including the two appellants Mr McKenzie and Mr Miles). The five accused faced an indictment of 25 counts broadly alleging conspiracy to manufacture methamphetamine, manufacture of methamphetamine, supply of methamphetamine and possession of precursor substances and equipment to manufacture methamphetamine. Some accused also faced firearms charges.

2

The conspiracy alleged Mr Miles and Mr McKenzie, along with a number of others, conspired to manufacture methamphetamine between 30 April 2010 and 9 June 2010 (count one). Mr Miles was also individually charged with manufacturing methamphetamine (count 10), possession of precursor substances with the intention to manufacture methamphetamine (count 11) and possession of equipment intended to be used to manufacture methamphetamine (count 12), all between 30 April and 9 June 2010.

3

Mr McKenzie was convicted of conspiracy; Mr Miles was acquitted of conspiracy but convicted of the three other offences. Mr Miles had also earlier pleaded guilty to three firearms charges. Both appeal their convictions and Mr Miles appeals his sentence of five years, five months' imprisonment as manifestly excessive. 1

McKenzie appeal
4

The Crown case was that Mr McKenzie financed Mr Matthew Newton's (another accused) manufacture of methamphetamine to the tune of $180,000 by way of a loan to him.

5

The pivotal issue in Mr McKenzie's appeal is the admissibility of a note written by Mr Newton and the use (if any) to which the note could be put in the case against Mr McKenzie. If the note is inadmissible, then the Crown accepts Mr McKenzie should not have been convicted. Mr McKenzie says the Judge, Whata J, was wrong to admit the note as evidence against him. Even if the note is admissible, Mr McKenzie's case is that the jury's verdict was unreasonable. 2

Facts

6

On 9 June 2010 the police executed a search warrant at Mr McKenzie's home. They contemporaneously executed search warrants at other homes relating to a number of co-accused.

7

At Mr McKenzie's home, they found a loan agreement between him and Mr Newton. The loan agreement, dated 29 January 2010, said:

Agreement between John McKenzie and Matthew Allan Newton

  • John McKenzie (lendor) agrees to loan Matthew Allan Newton in conjunction with High Street Finance Limited the total sum of Two hundred thousand dollars only ($200,000) at a fixed interest rate of 80% over a three month period starting from the execution of this contract on the condition that the balance is returned to him in full on or before Tuesday the 1st day of June 2010, and Matthew Allan Newton (borrower) agrees to pay back the total

    monies borrowed at the agreed terms as stated above in full either on or before Tuesday the 1st day of June 2010.

[8] The agreement was amended in writing changing the amount of the loan to $180,000. The agreement was signed by both parties and witnessed by a person called Ying Mao. 3 A few days later, it seems Mr McKenzie advanced the money. A cheque stub for $180,000 was in Mr McKenzie's cheque book dated 3 February 2010. Although the payee of the cheque was recorded as “Yingnan Mao”, the Crown case was that Mr Newton was the recipient of the money. The loan of $180,000 was said to be for three months but the agreement also specified the balance was not repayable until 1 June 2010 (approximately four months after the advance).

[9] In the same search, the police found a handwritten note on Mr McKenzie's kitchen table, together with a number of items of correspondence addressed to him. The note said:

Ive got 50k here for you

I lost out 436 12 An Product

I've got in the the boot 900 gram for to be turned 1.2 kg Payd for And a 100 grams finished

Here as well and

60 x 20 Rits for you if you want.

[10] At trial, a handwriting expert said the writing was Mr Newton's. The police also found $38,000 in cash in Mr McKenzie's house, tied in a similar fashion to money found in Mr Newton's house.

[11] The Crown case was that the jury could infer that the note from Mr Newton had been read by Mr McKenzie. As to the meaning of the note, the Crown adduced evidence from an expert in drug terminology. The Crown alleged that in the note Mr Newton was telling Mr McKenzie why he could not repay the loan in full. He had lost $436,000 in a police drugs raid, hence the reference in the note to 436. There was Crown evidence this had happened. The other references were to methamphetamine manufactured or to be manufactured and the supply of Ritalin.

[12] The Crown contended that the logical inference from the note was that Mr McKenzie had knowingly financed the manufacture. The manufacturer was reporting to Mr McKenzie why he could not repay the loan on the due date and what he was doing (further manufacture) to obtain the money to repay the loan.

[13] After his final address to the jury, counsel for Mr McKenzie raised two new issues with the trial Judge: whether the note was admissible against Mr McKenzie; and whether there was evidence Mr McKenzie could have committed the crime given the alleged advance to fund the manufacture was in January/February 2010 and the charge alleged conspiracy (by funding manufacture) in April to June 2010.

[14] Whata J ruled the note was admissible against Mr McKenzie as long as the jury was satisfied that Mr McKenzie knew about it. 4 He summed up accordingly. As to the second issue, the Judge told the jury they could convict Mr McKenzie if they were satisfied he had knowingly agreed to finance Mr Newton's drug manufacture in January/February 2010 and that agreement (the conspiracy) continued during the April to June period. 5

[15] After the guilty verdict, Mr McKenzie renewed an application under s 347 of the Crimes Act 1961 that had been made at the conclusion of the Crown case. The Judge refused the application but deferred sentence on the basis that the case would be heard on appeal in this Court. 6 Mr McKenzie was formally convicted on 15 November 2012.

Grounds of appeal

[16] As indicated above, Mr McKenzie advances two grounds of appeal. First, he contends that the Judge was wrong to admit the note as evidence against him. In support of this ground, Mr McKenzie says:

  • (a) The note is inadmissible under s 27 of the Evidence Act 2006.

  • (b) The co-conspirators exception to s 27 does not apply.

  • (c) Alternatively, the note is inadmissible hearsay.

  • (d) In any event, admission of the note is ultimately prohibited by s 8 of the Evidence Act.

[17] Secondly, Mr McKenzie argues that even if the note was correctly admitted, the jury's verdict was nevertheless unreasonable.

The admissibility of the note

Section 27 of the Evidence Act – the co-defendants rule

[18] Section 27 states:

27 Defendants' statements offered by prosecution

  • (1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.

  • (2) However, evidence offered under subsection (1) is not admissible against that defendant if it is excluded under section 28, 29, or 30.

  • (3) Subpart 1 (hearsay evidence), subpart 2 (opinion evidence and expert evidence), and section 35 (previous consistent statements rule) do not apply to evidence offered under subsection (1).

  • (4) To avoid doubt, this section is subject to section 12A.

[19] Section 27 only applies to a statement made by a defendant. Therefore the first issue to be determined is whether the note was a statement. We...

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