THE QUEEN v WAYNE GILBERT BRADLEY [2000] NZCA 160 (25 July 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 127/00

THE QUEEN

V

WAYNE GILBERT BRADLEY

Hearing:	25 July 2000 (at Auckland)
Coram:	Thomas J Anderson J Robertson J
Appearances:	L Cordwell for the Appellant
	B H Dickey for the Crown
Judgment:	25 July 2000

judgment of the court DELIVERED BY ROBERTSON J

[1] In February 2000 the appellant and Bruce Harai Greig stood trial in the High Court at Auckland on an indictment which contained three counts.

[a] That between 13 February 1999 and 1 March 1999 at Auckland, they imported into New Zealand a Class A controlled drug, namely cocaine.(This was referred to as the Grey Lynn parcel).

[b] That between the same dates the two imported into New Zealand a Class A controlled drug, namely cocaine.(This was called the Waiwera parcel).

[c] That on or about 1 March 1999, the two had in their possession a Class A controlled drug, namely cocaine, for the purpose specified in paragraph (c) of subsection (1) of Section 6 of the Misuse of Drugs Act 1975.

[2] At the end of the Crown case there was a successful 347 application by Mr Bradley in respect of the second count.

[3] The jury returned verdicts of not guilty in respect of both accused on the first count and in respect of the co-accused Mr Greig on the second count. They both were found guilty on the third count.

[4] Mr Bradley appeals against conviction in respect of that matter.

[5] In February 1999 the US Drug Enforcement Agency in Miami, Florida, had intercepted two A4 size envelopes which had been mailed from Bogota, Colombia. Each contained approximately 100 grams of cocaine (a Class A controlled drug) concealed inside magazines which were in the envelopes.One of the envelopes was addressed to Jerry Martins, PO Box 78 175, Grey Lynn, Auckland, New Zealand, and the other to John J Collins, PO Box 159, Waiwera, Auckland, New Zealand.

[6] Arrangements and approval were put in place for a controlled delivery of the two packages to the New Zealand Customs Service where they were received on 28 February 1999.

[7] In preparation for the delivery a video system was installed at the Grey Lynn Post Office on 27 February 1999.The appellant was observed at the Grey Lynn Post Office checking the mail in post office box 78 175 and then replacing it.This box was registered in the name of the co-accused Bruce Greig who at the time was absent from Auckland.The box 159 at Waiwera was also registered in the name of Mr Greig.

[8] On 1 March 1999 the authorities placed in the post office box number 78 175 at Grey Lynn, a card with regard to the collection of an oversized article from the postal counter.This was picked up at 2.45 that day by the appellant.At 3.40 the appellant presented the card to a postal attendant and was handed the A4 envelope and left the Post Office.He had telephoned the cell-phone allocated to Mr Greig by his employer immediately before he went into pick up the parcel and did so again immediately after he left the Post Office.

[9] The appellant was seen to drive a short distance.He stopped his car near Western Springs Park where he opened the envelope and took out a magazine which was sealed in plastic.He also opened and removed a packet of cocaine which was concealed in the hollowed out magazine.He placed the cocaine in the glovebox of his car and drove off.A few minutes later at about 4 pm the police apprehended the appellant in his car at the corner of Ponsonby and Karangahape Roads.

[10] In an interview with the police Mr Bradley said he was clearing the post office box for a friend and he had only opened the package out of curiosity.He denied any involvement in or knowledge of the importation of the cocaine.As a result of a search warrant subsequently executed at the address of the appellant and the co-accused at Grey Lynn on the same day, weighing scales, razor blades and self-sealing plastic bags were found in various parts of this flat.

[11] At trial each of the accused called evidence although neither gave evidence themselves.

[12] On the appeal against conviction Mr Bradley contends that:

[a] Considering that the appellant had already been discharged on count 2 of the indictment, the trial Judge was wrong in law when in his summing up he directed that the jury could take any similarities between the Waiwera parcel which had been count 2 and the Grey Lynn parcel which was count 1 into account in deciding the charge the appellant faced relating to Grey Lynn;and

[b] That the trial Judge failed to properly and adequately put the defence case in relation to count 3 of the indictment to the jury in his summing up.

[13] The first ground relating to a misdirection on similar fact evidence was not heavily relied on by counsel at hearing.He submitted that a comment made by the trial Judge in the summing up could have been ambiguous when he said :

As far as Mr Bradley is concerned, he is no longer charged with any offence relating to the Waiwera parcel, but if you find there are similarities in accordance with the tests I am about to give you, you can take any similarities between the Waiwera parcel and the Grey Lynn parcel into account in deciding on the charge he faces relating to Grey Lynn.

[14] The complaint is that the Judge did not at that point distinguish between the importation charge and the possession for supply charge so the phrase "relating to Grey Lynn" could have been misinterpreted.

[15] As Mr Dickey pointed out, that comment needs to be seen within the context of the summing up as a whole and alongside other comments which the Judge made on this issue, particularly when the Judge said in the context of directions on similar fact :

What I am telling you now relates only to the importing charges, not to the possession for supply.If you find the tests I am about to give you proved, then you must not assume guilt on one charge simply because of the similarities in the packaging.That is particularly important because you must look at the evidence of each charge against each accused separately.

[16] And later :

... the Crown is entitled to rely on the similarities between the two packets on the importing charges.

[17] We have no doubt that when the summing up is read as a whole there is no possibility that the Jury could have been mislead as to the manner in which they could use the similar fact evidence or could have thought that it could have had any effect on the count alleging possession for supply.

[18] Mr Bradley was not found guilty by the jury on the Grey Lynn importation count.The possible effect of the s 347 discharge in respect of the Waiwera importation count is academic and not relevant to the count on which he was convicted and now appeals.

[19] The substantive ground of appeal was what was described as the failure of the trial Judge to properly and adequately put the defence case to the jury on count 3.

[20] Mr Cordwell accepted that at trial there was no issue that the substance involved was cocaine.The presumption applied because of the quantity.As the Judge noted in his summing up, possession was the main issue with regard to this part of the case.

[21] He directed that the Crown had to prove four conditions :

[diamond] The accused had actual or potential control of the drug.

[diamond] The accused knew what the item was.

[diamond] The accused had the intention and ability to exercise control over the item.

[diamond] The accused voluntarily accepted control of the item.

[22] It was Mr Cordwell's submission that although the Judge had correctly identified these facts, he should have made it clear to the jury that the nature of the defence presented at trial was that the appellant was ignorant of the contents until he opened the package out of curiosity while parked at Western Springs.

[23] The Judge said about this aspect of the case :

Thirdly, and I mentioned this a moment ago, the Crown must prove the accused had the intention and ability to exercise control over the item.I have dealt with that.That is often a matter of inference and it may well be a matter of inference in this case, particularly as far as Mr Greig is concerned.If the accused is shown to have had the item in his or her control, to have known about its presence, then it may be a reasonable interference there was an intention to exercise control over it unless there is evidence to the contrary ...

[24] Counsel submitted that such evidence was to be found in Mr Bradley's statement made to Detective Le Comte and it was contended that the Judge did not during the course of his summing up, say specifically to the jury that if they accepted the explanation which the appellant had given to the police officer then he would not have had the necessary intention to exercise possession over it.

[25] The Judge said about the possession charge :

On the possession for supply charge, his defence is that he was clearing the box for Bernadette Knight, picking up the mail, passing it on to Mr Greig for Bernadette Knight and he was unaware both of the contents of the package or that it contained a controlled drug.Importantly, Mr Cordwell, counsel for him, accepted that Mr Bradley accepted that he had physical possession of the Grey Lynn parcel and that because of the weight of the cocaine in the parcel, there was a presumption of supply, but the Crown must still prove it, in accordance with what I have just said ...

[26] It is now said that the Judge while talking in detail about some issues, like the meaning of importation and the meaning of the presumption, had failed to properly assist the jury with regard to the appellant's contention that he did not intend or show willingness to exercise possession.It was submitted that there was a real danger that the jury could have been left with the impression that because the appellant was in physical possession of the parcel, he was legally in possession of the cocaine and therefore needed to address the presumption.

[27] We are not atttracted by this argument.

[28] First the extent of the evidence available with regard to the position of Mr Bradley is to be noted.

[diamond] The appellant telephoned his co-accused's mobile twice.The first call occurred after the appellant collected the over-sized packet card (3.37 pm) and the second call was at 3.50 pm, after he collected the packet.

[diamond] The appellant drove only a short distance before he stopped his car and opened only this package.The package was not addressed to him.He did not open any of the other mail collected from the Post Office.

[diamond] When the appellant took the magazine out of the envelope, he would have seen it was sealed in plastic and that it was a National Geographic magazine.The appellant took a step further and opened the plastic wrapper. He subsequently used that wrapper to put the smaller drug bag in.

[diamond] Once he discovered the cocaine inside the magazine, he extracted it, put it in the magazine wrapper and discarded the packaging, label and magazine and placed the cocaine inside the glove box.

[diamond] Thereafter the appellant knowing the drug was cocaine or speed, made no attempt to rid himself of it.

[diamond] There was no attempt to abandon the drug nor was there any attempt to report its presence to the authorities.

[29] It is submitted by the Crown, and we agree, that the suggestion that Mr Bradley was unwittingly, unwillingly or involuntarily in possession of the cocaine is on the totality of the evidence untenable.

[30] In the absence of evidence from the appellant at trial which dealt with the realities of the position presented by the Crown case, when the summing up is read as a whole it is clear that the real emphasis in the appellant's defence at trial was his claim that he lacked knowledge that there was cocaine there.The argument which his counsel now runs was not a matter raised by the appellant when he was spoken to by the police.He never suggested that he had just discovered the drug when led by curiosity, he opened up a parcel addressed to Jerry Martins, which was in the post-box registered in the name of Bruce Greig being used by Bernadette Knight and others, because it came from an overseas address and that it was purely coincidental that he had gone to a secluded place to open it, and when he had found what it was, placed it in the glove-box before driving off.

[31] The Judge noted in his summing up that the involuntary or unwilling possession "was probably not an issue in this case" and accordingly it received only minimal attention.

[32] In this case after the summing up when the jury had retired, defence counselraised with the Judge a concern about an unrelated aspect of the summing up.The Judge brought the jury back into Court to deal with the point.No issue was raised at that stage about the point now advanced as being of relevance or importance.

[33] When the evidence is read as a whole and the summing up is considered against it, there was overwhelming evidence of guilty knowledge on the part of Mr Bradley.It is hardly surprising that the jury was satisfied in the absence of any evidence to the contrary that he had the requisite knowledge in respect of count 3.

[34] There is no substance in the complaint about the summing up and the appeal is accordingly dismissed.

Solicitors

Crown Solicitor, Auckland