R v Washer CA60/96 [1996] NZCA 241 (11 July 1996)

Last Updated: 21 January 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.60/96}

_{THE QUEEN}

v

_{BRYAN ALFRED WASHER}

Coram: McKay J Thomas J Keith J

Judgment

_{(ex parte): 11 July 1996}

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

The appellant was convicted by a jury in the High Court at Auckland of supplying methamphetamine and conspiring to supply methamphetamine, a Class B drug. He was sentenced to concurrent terms of two years imprisonment on each of the charges. He appeals against both the convictions and the sentences.

The charges were brought against the appellant and other accused as a result of Operation Crane, conducted by the Police to crack down upon a ring of suspected drug manufacturers and suppliers. The principal evidence against the various accused, including the appellant, was obtained by listening devices which were introduced into the home of a Mr Hinckesman, who lived in central Auckland. The defendant’s involvement was established by the presence of his voice on the

tapes seized by Police, and by references being made to him on the tapes by other accused. On appeal against conviction, the appellants contentions are essentially

(i) that the Judge admitted hearsay evidence and misdirected the jury on the use to which that evidence could be put;

(ii) that there was insufficient evidence on the tapes to identify the appellant;

(iii) that the Judge and jury failed to take into account that the person at the centre of the conspiracy, Hinckesman, did not give evidence at trial; and

(iv) that the verdict was against the weight of evidence, and/or unreasonable.

Hearsay

In his submissions the appellant refers to conversation on the tapes in which other accused use his name, or refer to him implicitly, and which was used to identify him. Fisher J in the High Court accepted that this evidence is hearsay. However the appellant’s argument is ill-founded. The Judge dealt with statements on the tapes which were hearsay in his summing up to the jury. At pages 7-8 of the summing up he said:

“The next matter concerns the use of statements made by other people. Where there is evidence of what people have said in conversations on other occasions, you must be careful about the use to which you put that evidence. Generally you will be interested in the conversations only for the very fact that the conversation was held at all. For example, the conversation might show what someone intended to do or it might show what information has come into someone’s mind.”

We are satisfied that this direction adequately explains to the jury the limited purpose for which such evidence may be used.

Identification

The prosecution adduced evidence from several witnesses in respect of the tapes. Those witnesses testified to the presence of the defendant’s voice on the tapes after lengthy analysis of the conversations. There was also evidence that the defendant’s name was used on the tapes, both in conversations involving the defendant himself, and in his absence. We are satisfied that there was sufficient evidence for the jury to have concluded that the defendant was the person identified on the tapes. The second ground of appeal is therefore dismissed.

Lack of evidence from Hinckesman

Mr Hinckesman was the owner of the dwelling into which the listening devices were introduced. The Judge described him as the cog at the centre of the wheel, with all of the other accused making up the spokes. He had been dealt with by the court prior to the appellant’s trial. He was not called to give evidence at the appellant’s trial, and there was no obligation on the Crown to call him.

Clearly the jury were satisfied that the case against the appellant was made out on the basis of the evidence put before them. This ground of appeal has no substance.

Unreasonable and/or unsupportable verdict

We are satisfied that there was sufficient evidence from which the jury could infer that the appellant was the person on the tapes, and that he was guilty of the crimes of which he has been convicted.

Each of the grounds of appeal having failed, the appeal against conviction is dismissed.

Appeal against sentence

The appellant contends that his sentence of 2 years imprisonment for each of the charges, served concurrently, was manifestly excessive. The appellant was involved in the commercial supply of a Class B drug, namely methamphetamine, through the bar which he owned in Auckland. For this reason the Judge classed him as a professional trader in drugs on an ongoing basis. He has two previous convictions for drug offences, though neither of them involved supplying drugs.

In his second written submissions, the appellant questions a particular passage which the Judge in his sentence remarks purported to quote from the transcript. The appellant says he cannot find this passage in the transcript. It was given only by way of example, however, of the many references by the appellant showing his intimate knowledge of and involvement in drugs, which required that he be put into the category of a professional trader in drugs on an ongoing basis.

In these circumstances we are satisfied that the sentences imposed were within the range available to the Judge. The appeal against sentence is accordingly dismissed.