THE QUEEN v TERRY JOHN BURKE [1999] NZCA 49 (19 April 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca373/98

THE QUEEN

V

TERRY JOHN BURKE

Hearing:	25 March 1999
Coram:	Eichelbaum CJ Keith J Gallen J
Appearances:	K I Jefferies for the Appellant S P France for the Crown
Judgment:	19 April 1999

judgment of the court delivered by GALLEN J

[1]The appellant was indicted on two counts, both alleging importation of the Class B controlled drug MDMA, commonly known as "Ecstasy".After a trial in the District Court before a jury, he was convicted on both counts, sentenced to 4 years' imprisonment in respect of each count and now appeals against both conviction and sentence.

[2] The Crown case depended upon allegations that on or about 24 April 1997, the New Zealand Customs intercepted a parcel at the International Mail Centre at Ellerslie postmarked from the United Kingdom.When that parcel was opened, it was found to contain 198 Ecstasy tablets which were inside a music cassette.It was the contention for the Crown that the tablets had an approximate street value of $20,000.The tablets concerned were replaced with substitute tablets and the parcel reintroduced into the mail system on 6 May 1997, following which it was delivered to a letterbox numbered 6C Ponsonby Road, Ponsonby, Auckland.There was in fact no equivalent address and it was the contention for the Crown that the letterbox had been specifically set up to receive drugs addressed to it.Video surveillance of the letterbox was put in place.The appellant is said to have visited the letterbox on two separate occasions before delivery of the parcel had been effected.About 2 pm on 6 May 1997 the appellant with another person visited the letterbox and looked inside it but left without uplifting the parcel.That parcel remained in the letterbox and was not uplifted.It was subsequently removed by New Zealand Customs staff later that evening.

[3]On or about 5 May 1997 a person in the United Kingdom despatched a parcel intended and labelled for the same Ponsonby Road address.On or about 12 May 1997, New Zealand Customs intercepted at the Mail Sorting Centre in Grey Lynn, a second parcel postmarked from the United Kingdom.When that parcel was opened, 190 Ecstasy tablets were located inside it, inside a music cassette.Again it was the Crown contention that the tablets had an approximate street value of $20,000.On this occasion also the Ecstasy tablets were replaced with substitute tablets.The parcel was reintroduced into the mail system on 14 May 1997 and subsequently delivered to the letterbox with the number 6C Ponsonby Road, Ponsonby, Auckland.

[4]At approximately 6 pm on Wednesday 14 May 1997, two persons went to the alleyway housing the letterbox.They entered a nearby flat before returning to the alleyway and approaching the letterbox.The parcel was removed by one of those persons and as a result of the use of tracking devices secreted within the parcel, it was subsequently located hidden beside another building at the rear of a carpark.

[5] When spoken to about the delivery and the parcel, the person who had picked it up, one Williams, stated that he had been asked to uplift the parcel by a third party (Holt) and that it was intended for the appellant.On Thursday 15 May 1997, police executed a search warrant at the appellant's home address. Located at that address was correspondence originating from the United Kingdom, which was said to link both the writer and the appellant to the importations.

[6] The first point taken on the appeal is that the District Court Judge failed to properly direct the jury in his summing-up and in particular, failed to adequately explain to the jury the ingredients and elements required to be proved to support a conviction for importation of a Class B drug and that his summing-up involved misdirection on points of law.The submission depends upon a contention that it is a pre-requisite for a successful importation charge under the Misuse of Drugs Act 1975, that there must be some evidence that the appellant took some positive overt act in connection with the importation of the drugs.Reference was made to the decision of this Court in R. v. Hancox (1989) 4 CRNZ 535 and that of the High Court in Cox v. Police (1989) 5 CRNZ 388.Counsel contended that although there was evidence to establish the involvement of the appellant once the packets had actually been delivered, that involvement was more indicative of possession for supply than importation.

[7] In his summing-up, the Judge referred specifically to importation as follows (at pp.8-9):-

"Now in addition to the Crown having to prove the identity of the accused, the date of the offences and the location, which is Auckland, common to both counts and none of which has been challenged, the essential ingredients that the Crown must prove in respect of each charge are these, the following three ingredients:-

(1) That the drug imported was MDMA Class B.I say immediately there has been no challenge by the defence that the drug that was found in the packages which came from England was that drug, so you may safely conclude that the Crown have proven that ingredient of the charge beyond reasonable doubt.

The next two are the important issues:-

(2) That the accused was involved in the importation.

(3) That at the time of the importation the accused knew that the package in respect of each charge contained the drug MDMA.Remembering all the time, as I have directed you, that the Crown must prove these ingredients to you beyond reasonable doubt.

Really this case boils down to these last two issues.Have the Crown proven the accused was involved and knew that the packages contained the drugs?

Well lets look at the second [first] of those ingredients that is whether the accused was involved in the importation.By definition importation simply means the bringing or causing to be brought into New Zealand an item from overseas.An importation ceases at the point when the item is available to the consignee.In this case it ceased when the item was placed in the letterbox. Here the Crown's case is that the accused Mr Burke was an importer or a party to the importation......"

[8] The Judge then went on to direct the jury as to the meaning of a "party" in terms of s.66 (2) of the Crimes Act 1961 and he said (at pp.9-10):-

"A person can be a party to an offence in circumstances such as this if the Crown prove;

(1) That two or more persons were involved

(2) That those persons two or more formed a common intention, that is they reached an agreement on what they were going to do.

(3) The common intention was to do two things, prosecute an unlawful purpose, that is do something that was unlawful.In this case import drugs illegally, illegal drugs and to assist each other in doing it.

If the Crown prove those matters then both parties are guilty of the offence of doing the unlawful act.Applying that to this case, if you find that Mr Burke was a party to the importation then he is guilty of the offence.

On this question of the importation the Crown say that it is clear on the evidence that on each occasion the drugs were brought into New Zealand from the UK by the postal service and that the accused was involved as a party with others."

[9] Mr Jefferies' submission depended upon an assertion that in the circumstances of this case, there was an obligation on the Judge to explain to the jury that before the appellant could be convicted, it was necessary for the Crown to establish that he had been involved in some overt act before the importation was complete and that it was incumbent upon him to explain to the jury the difference between a charge of importation and one of possession for supply.We are unable to agree with the second part of that submission.

[10] In our view the Judge appropriately identified the elements of the charge and to have gone on to explain differences between that charge and one the appellant did not face, was unnecessary and may well have been confusing.On analysis, Mr Jefferies' concern was as to the nature and quality of the evidence in the Crown case, rather than a criticism of the summing-up and as such it is more appropriate to consider the submission in terms of the third ground of the appeal.That is that the verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported in all the circumstances and on the evidence.Before dealing with this however, it is appropriate that we should deal with the second ground which raises criticism of certain evidence and the approach to it adopted by the Court.

[11] The first part of that criticism relates to an undated letter referred to as the "poppers" letter.This was a document said to have been discovered in a wardrobe in circumstances which established it was within the possession of the appellant.The letter was undated and was associated with an envelope in respect of which the postmark was indecipherable.It is accepted that the letter was not written by the appellant.There is a reference in the letter to "poppers" which it was accepted at the trial was a common name for a drug or pills known as amylnitrate.It is not a classified drug under the Misuse of Drugs Act, but a substance which it is illegal to import and supply without a licence.While it seems to have been accepted for most purposes during the trial that the term "poppers" referred to amylnitrate, there was evidence from the Crown that as a term it could also have been applied to some other substances, but the evidence is not strong on this point.While the letter is not otherwise specific to drug transactions, its overall tenor is clearly at least consistent with such transactions.It is expressed in a terminology which is strongly suggestive of transactions of that kind.It clearly also imports a business relationship and involves monetary transactions.

[12] The admissibility of this letter was challenged pre-trial and the Judge ruled in favour of its admissibility.

[13] The appellant's case was that the contents of the letter were irrelevant to the substances in respect of which the charges related, or to their importation and did no more than provide prejudicial material that on some other occasion or occasions quite unrelated to the charges before the Court, the appellant may have had some involvement with the importation of "poppers". It was contended that this proved nothing for the purposes of this case but was bound to be highly prejudicial as far as the appellant was concerned.

[14] The Crown relied upon the fact that the letter was written by one James, the same person whom it was alleged had sent the drugs the subject of these charges;that it was in the appellant's possession;that it described an ongoing relationship concerning drugs of a kind at least similar to that the subject of the charges;that it spoke of a loss of profits in April which coincided with the seizure of the first package and which therefore dated the letter as recent and in addition that other envelopes from the same writer were found in the possession of the appellant.

[15] It is important to isolate the purpose for which the letter was tendered. That was to show that there was a continuing relationship between the appellant and James the sender of the letter which related to the supply and distribution of drugs.We consider the letter was relevant and admissible as going to show that the appellant was involved in continuing transactions with James and that those transactions were of a monetary nature since they involved the payment of and accounting for, reasonably substantial sums of money.The fact that the letter was in the possession of the appellant and had been retained by him is also relevant.The objections made on behalf of the appellant go rather to weight than admissibility.

[16] In that regard, we note that in his summary of the case for the defence, the Judge reminded the jury of the submissions made on behalf of the appellant that it was not known when the document was written, that it did not talk about the importation of the substances the subject of the charges, but he went on to note that the Crown case was that the letter showed a relationship beyond friendship between the exporter and the appellant.

[17] We do not consider therefore that the Judge was wrong in his pre-trial ruling or that the admission of the letter concerned at the trial, could provide a basis for an attack on the validity of the verdict.

[18] Mr Jefferies however also took exception to evidence given by Williams and to the failure of the Judge to give the jury a warning in respect of this evidence, even if it were held to be admissible.This evidence had been the subject of a pre-trial ruling in which the Judge had determined it was admissible.The general tenor of the evidence was that Williams who had had a relationship with Holt, was engaged by Holt for payment, to uplift a parcel from the letterbox concerned.Williams stated that he was told by Holt that the parcel contained Ecstasy and that the instructions required him to deliver the parcel to one Terry who was known to Williams and was in fact the appellant.His evidence also indicated that he was warned to approach the letterbox in a particular way because of the risk that it was subject to camera surveillance.Holt who was also charged in connection with these incidents, gave evidence for the defence in which he denied making any such statements or arrangements to or with Williams.Mr Jefferies maintained that the material concerned was hearsay and inadmissible.

[19] The Crown contended that the material concerned was admissible on two grounds.First, that in so far as it emanated from Holt, Holt was a co-conspirator with the appellant and that in so far as Williams recounted it, he was simply asserting as a fact that the statement had been made.The admissibility of statements from co-conspirators is not in doubt.We accept that it is necessary to establish as a basis for the admissibility of such material that there is reasonable evidence independent of the statement concerned to establish both the conspiracy and the involvement of the appellant in it. (Buckton [1985] 2 NZLR 257).

[20] We are satisfied that there was sufficient evidence to meet this test. There was evidence of association between the appellant and Holt and in particular, there was surveillance evidence which established that they had both been seen in the proximity of the letterbox and in circumstances which suggested they were concerned with its contents.It follows that the necessary basis for admissibility had been established.

[21] Mr Jefferies submitted however that in so far as Holt was a co-conspirator and Williams had some involvement in the enterprise, it was incumbent on the Judge to give a warning to the jury that the origins of the evidence made it unreliable, or that the risk of an improper motivation rendered it suspect.In addition he submitted that the jury ought to have been advised that the fact that the appellant was not present when the statements were made, justified a direction that it should be regarded with suspicion.

[22] The obligation to give warnings in circumstances such as these, is not absolute but depends in every case on the circumstances.In so far as the concern arose with regard to Holt, it would have been difficult for the Judge to include any warning in the summing-up to the jury which did not detract from the case for the defence, since Holt was called as a defence witness.Such a warning must have involved drawing a distinction between the reliability of Holt on one occasion from that on another.We accept that some Judges may have felt it desirable in circumstances such as these, to draw the attention of the jury to the fact that the appellant was not present and that there could be a risk of Williams making some self-serving statement, but in the circumstances of this case we do not see that the failure to give such a warning would have resulted in a miscarriage of justice.

[23] The third ground relied upon by Mr Jefferies was that in the circumstances of this case, the verdict was unreasonable and could not be supported on the evidence.Mr Jefferies submitted that in this case the evidence implicating the appellant was weak and in so far as he had been shown to have participated, this participation was all subsequent to the completion of the importation.Mr France drew attention to the fact that once the evidence of Williams was admitted, there was substantial evidence which implicated the appellant.

[24] There was clear evidence that the letterbox to which the substance had been directed, was not directly associated with any premises.Williams stated that he had been told by Holt that the appellant had set the letterbox up.He was also told by Holt that it could also be the subject of surveillance. Surveillance in these circumstances could only apply to some illicit enterprise.There was the evidence that the appellant had been seen in the vicinity of the letterbox in the company of Holt.Visits could be corelated in terms of time to packets forwarded by James.There was the evidence of the relationship with James, coloured by the material contained in the "poppers" letter.In addition there was evidence of telephone calls to England, although there was no evidence to indicate to whom those were made.There was also evidence of the reaction of the appellant with the knowledge that his premises were to be searched.

[25] Mr Jefferies made the point that some at least of this evidence related to actions after the importation had been completed, but it does not all so relate and the subsequent material is evidence from which the jury were entitled to infer knowledge and that it was consequential upon involvement in the enterprise.We agree with Mr France that there was material upon which a jury could justifiably come to the conclusion that the case against the appellant had been proved.

[26] The next point relied upon by Mr Jefferies was that the Crown failed to discover all relevant video tapes a reasonable time before the trial commenced. This submission related to surveillance tapes emanating from the video camera placed in position in the vicinity of the letterbox.There was a factual dispute as to whether or not the material had been disclosed, but even if it had not been, the appellant made a conscious decision to proceed with the trial rather than seek an adjournment, a decision which was understandable bearing in mind the delay which had already occurred.Mr Jefferies was unable to point to any material which might have had a bearing on the outcome of the trial or the way in which it was conducted and we are satisfied that whatever delay did occur, did not result in a miscarriage of justice.

[27] It follows then that the appeal against conviction cannot succeed and will be dismissed.

[28] That leaves the appeal against sentence.Mr Jefferies approached this in a number of ways.He submitted first, that the sentence imposed involved disparity amongst the various persons involved in the incidents the subject of charges.Williams to whom reference has already been made, was sentenced to 15 months' imprisonment, the imprisonment being suspended.Holt was sentenced to 20 months' imprisonment on a charge of possession for supply.James who was responsible for sending the material, has not yet been sentenced but on pleading guilty to one count of importation, he had the other count withdrawn.

[29] Mr France for the Crown accepted that an indication had been given to James that a likely sentence in his case in respect of the one remaining count was in the vicinity of 14 months.His sentencing has apparently been postponed because the Court is seeking further information with regard to possible treatment for drug addiction.The case of Williams was not comparable.The only evidence before the Court indicates that his involvement was solely to uplift the substance from the letterbox and to deliver it to the appellant. The Judge took the view on the information before him that Williams was an impecunious student who had been to some extent imposed upon by other participants.It was open to him to so find.As far as Holt is concerned, it appears that he suffers from a terminal illness and that this, as well as the fact that he had entered a plea of guilty to a lesser charge, differentiates his position from thatof the appellant.

[30] We are concerned that James has not yet been sentenced, but we do not think that the delay in sentencing James ought to prevent this Court from considering the appropriateness or otherwise of the sentence imposed upon the appellant.We are not therefore able to obtain any assistance from a consideration of the penalties which were imposed on other participants in the particular incidents.

[31] Counsel agreed that there was little in the way of comparable sentencing which was relevant.Reference was made to the decision in R. v. Watkins (CA.354/97, judgment delivered 26 February 1998), where a sentence of imprisonment of 7 years was imposed for the importation of Ecstasy in circumstances where 5,200 tablets were imported having a street value in the vicinity of $470,000.In that case the Court took as a starting point 9 years and reduced that by 2 years for the early guilty plea. The sentence was upheld.The only other case to which reference was made was the recent decision of Salmon J. in R. v. Poelman (High Court, Auckland Registry T.132/98, sentence delivered 30 October 1998).In that case, 1,990 tablets of Ecstasy were imported, having a street value of between $160,000 - $199,000.It followed on a defended hearing and the sentence imposed was 5.5 years' imprisonment.

[32] Mr Jefferies submitted that bearing in mind the appellant in this case imported less than 400 tablets of a total street value of some $40,000, meant that a sentence of 4 years' imprisonment was out of proportion and manifestly excessive.We were informed that the decision in Poelman is at present under appeal but as to conviction only, although we have no details as to that.Mr France submitted that in Poelman there was only one importation and that it was incumbent on the Court in this case to recognise the fact that there had been two separate importations, albeit for rather smaller amounts.He submitted also that the Judge was right in concluding that since this substance is not at least at present to the knowledge of the authorities manufactured in New Zealand, it was important to make it clear to those who attempted to participate in its importation, that the consequences of doing so would be severe in order to as far as possible, deter its importation.

[33] We note that the drug is classified as Class B, which is an indication of the degree of concern Parliament had towards it.We do not consider that a sentence of 4 years' imprisonment for transactions involving $40,000 worth of cannabis oil which is also a Class B drug, could be seen as excessive.When the matter is looked at in that light, it could not be said that a sentence of 4 years' imprisonment for importation on two occasions of Ecstasy having a street value in the vicinity of $40,000 was manifestly excessive, although no doubt it can properly be regarded as severe.

[34] The appeal against sentence must also therefore be dismissed.

Solicitors for Appellant: Messrs Jefferies and Raizis, Wellington

Solicitors for Respondent: Crown Law Office, Wellington

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