THE QUEEN v BRUCE HARAI GREIG [2000] NZCA 176 (29 August 2000)

IN THE court of appeal of new zealand

ca131/00

THE QUEEN

V

BRUCE HARAI GREIG

Hearing:	29 August 2000
Coram:	Blanchard J McGrath J Young J
Appearances:	D G A Reece and M L Wotherspoon for Appellant B H Dickey for Crown
Judgment:	29 August 2000

judgment of the court delivered by young j

Introduction

[1] Bruce Haira Greig and Wayne Gilbert Bradley were found guilty in February this year in the High Court at Auckland on a joint count of possession of cocaine for supply.Bradley subsequently appealed against conviction and his appeal has been heard and dismissed (see R v Bradley, unreported CA 127/00, judgment delivered 25 July 2000).

[2] Greig has also appealed against conviction.As well he appeals against a sentence of two years imprisonment imposed on an unrelated charge of supplying methamphetamine to which he pleaded guilty.

[3] So we are required today to deal with Greig's appeal against conviction on the charge of possession of cocaine for supply and his appeal against the two year sentence imposed on the methamphetamine charge.The sentence appeal is only of real moment should the appeal against conviction on the charge of possession of cocaine for supply be allowed.

Factual background

[4] In early February 1999, two packages were mailed from Bogota in Columbia to New Zealand.One was addressed to John J Collins, PO Box 159, Waiwera, Auckland.The other was addressed to Jerry Martins, PO Box 78-175, Grey Lynn, Auckland.

[5] On 13 February 1999, United States Drug Enforcement Agency officials in Miami inspected the two packages and discovered that they contained cocaine. In each case the cocaine weighed around 100 grams and had been concealed inside a magazine (inside which a cavity had been cut for this purpose).By arrangement with the New Zealand authorities, the packages were brought into New Zealand.

[6] The New Zealand authorities decided to allow the Grey Lynn package to be uplifted from the post office to which it had been addressed.Before they did so, they removed most of the cocaine and replaced it with sucrose.The package was re-assembled.As reassembled, it consisted of the original cover (still addressed to Jerry Martins at PO Box 78-175, Grey Lynn), inside which was a magazine which was itself inside a plastic wrapper and contained, in the cut out portion to which we have referred, a bag containing sucrose but which also contained, inside it, approximately 1 gram of cocaine.

[7] PO Box 78-175, Grey Lynn, was registered to a young woman, Bernadette Knight.PO Box 159, Waiwera was registered to the appellant Greig.He had taken over this box in May 1997 and had shared it with a Crown witness, Duncan Scott Emerson.In early 1999 Greig was residing in a house at 13 Fisherton St, Grey Lynn.Bernadette Knight had been staying at that address in January 1999. When she departed around 20 January she left the key to the Grey Lynn post office box with Greig and his flatmate, Keron Smith, with a request that they clear the box from time to time and send on to her any mail which they collected.So, in these ways, Greig was connected to both the boxes to which the Colombian packages were addressed.

[8] Also living in the house at 13 Fisherton St was Bradley (although in a different flat in that building).He and Greig knew each other.

[9] On 27 February 1999, Bradley was observed inspecting the mail in post office box 78-175, Grey Lynn Post Office.He did not take any mail away.

[10] On 1 March, the Grey Lynn package was taken to the Grey Lynn Post Office. An oversize package card was placed in box 78-175.At 2.46pm Bradley checked the post office box and removed the oversize package card.He then left the premises.At 3.37pm he telephoned the number of a cellphone used by Greig. The call lasted 42 seconds.At 3.40pm he returned to the post office and uplifted the package he then drove off in his car.At 3.50pm he made another call to Greig's cellphone which also lasted 42 seconds.Then at 4.02pm he was stopped by the police at the corner of Karangahape and Ponsonby Roads.By this stage the package had been opened and the bag containing the cocaine and sucrose had been taken out and placed in the glovebox of his car.

[11] Bradley made a statement to the police.Broadly his position was that he had been asked to clear Bernadette Knight's mail,Greig had given him the key to the post office box for this purpose,he had received the package at the counter in good faith, he became curious when he realised that it was from overseas and was not addressed to Bernadette Knight and he had therefore taken it away and opened it.He claimed to have been overcome by panic when he realised the significance of its contents.

[12] Although Greig was interviewed on several occasions he never really addressed the circumstances which the Crown relied on against him.In substance, he exercised his right of silence.

[13] Arising out of these facts, Bradley and Greig faced three charges - importing the cocaine in the Grey Lynn package, importing the cocaine in the Waiwera package and possession for supply of the cocaine found on Bradley at 4.02pm on 1 March 1999.

[14] Bradley was discharged at trial under s347 in relation to the charge alleging importation of the Waiwera package.Greig was acquitted by the jury on that count.Both were acquitted on the charge of importing cocaine in the Grey Lynn package.They were, however, both convicted on the charge of possession of cocaine for supply.

Grounds of appeal against conviction

[15] Greig appeals on the following grounds:

1. The verdict was unreasonable and cannot be supported by the evidence;

2. There were a series of misdirections by the trial Judge;

3. There was a failure by the trial Judge to put the defence case to the jury;

[16] We address each of those grounds in turn.

First contention: the verdict was unreasonable and cannot be supported by the evidence

[17] The Crown was on strong ground in asserting at trial that Bradley was knowingly in possession of an illicit drug when he was stopped on 1 March 1999.

[18] Bradley's two visits to the post office on 1 March were suspicious. On the second visit, he obtained a package which was addressed neither to him nor to Bernadette Knight but which he nonetheless took away.He drove only a short distance before he stopped and opened the package.He took the magazine out of the package.The magazine was in a plastic wrapper.So, in order to get at the bag inside the magazine he had to remove the magazine from the wrapper.He removed the bag containing the cocaine and sucrose from the magazine.He then put that bag in the glovebox.He took no steps to rid himself of the drugs or to inform the authorities.As well, at his flat he had the paraphernalia normally associated with drug dealers, plastic bags and scales, and some paraphernalia which was well suited to the use of cocaine.

[19] Was there evidence available to the jury to support the conclusion that Greig also was guilty?

[20] There were a number of factors which the Crown could rely on suggesting that Greig was indeed guilty.

[21] First, the Grey Lynn package was sent not long after Greig took over effective joint control of the Grey Lynn post office box.Secondly, the Crown evidence supported the view that Greig had given the key to the Grey Lynn post office box to Bradley.This was not a matter of relying illegitimately on Bradley's statement to that effect as the Crown evidence, by a process of exhaustion, pointed strongly to this conclusion.Thirdly, there are the cellphone calls made to Greig just before and just after Bradley uplifted the drugs from the post office box.

[22] This is a case dealing with purposive and serious criminal conduct. Whoever arranged for the Grey Lynn package to be sent must have intended that it be uplifted.It is logical to infer that someone who was a party to the conspiracy or the concerted action involved would have access to the post office box.Greig had such access from late January 1999, around the time that the package was sent.Everyone else who had similar access denied being a party to the importation of cocaine.The two telephone calls suggest a link between Bradley and Greig and their timing suggests that this link was associated with the cocaine.

[23] For reasons which we will come to shortly, we leave out a consideration for the moment other formidable evidence against Greig, namely his connection with the post office box at Waiwera to which cocaine was also sent.Even leaving aside this evidence, there was a strong circumstantial case against Greig, particularly in the absence of any evidence from Greig giving an innocent explanation of the facts to which we have referred.

[24] An unusual feature of the case was that the jury rejected the charges of importation but convicted on the charge of possession for supply.This is probably explicable on the following basis: that there was no direct evidence implicating Greig with the actual dispatch of the cocaine from Columbia, the jury took the view that the final straw justifying conviction was the combined effect of the actual collection of the cocaine and the two phone calls, but the jury was reluctant to reason backwards from this evidence to the conclusion that Greig was necessarily a party to the earlier importations.

[25] Another slightly unusual aspect to the case is that it was not presented to the jury on the basis that Bradley was the principal offender and Greig a party.Rather the case against Greig was presented on the basis that Bradley's possession could be treated constructively as being the possession of Greig. This was the way the case was run by the Crown.So this is the way the case was put to the jury by the Judge.Accordingly, s66 of the Crimes Act was not invoked.The case was left to the jury on the basis that it could only convict Grieg if satisfied that he was the principal, and Bradley his agent, in the uplifting of the Grey Lynn package.

[26] Although there was some discussion of this in argument before us, we are satisfied that the result of this slightly unusual approach to the case was merely to set the hurdle for Crown rather higher than was necessary.Thus Greig suffered no prejudice.

[27] It follows that we are of the view that the first ground of the appeal is not sustainable.

Second contention: there were a series of misdirections by the trial Judge

[28] A series of alleged misdirections were also relied on.

[29] The first is a complaint about the following remarks made by the Judge in his summing up:

...as far as Mr Greig is concerned ... on the possession for supply charge his defence is that he was never in physical control of either the Waiwera parcel or the Grey Lynn parcel and he never had any intention to exercise control over them.

[30] We have had some difficulty in following the complaint as to this direction.So we set out what counsel for the appellant said in his written submissions: -

... the direction could be said to understate the appellant's defence because not only did the appellant deny having (physical) custody but he also denied, by inference, having any actual control of the item or knowledge that it even existed.The latter two points were not mentioned by the Trial Judge in his summing up and by mentioning one element without the others may have the jury to believe that they could take for granted the physical element of control and that the only dispute by the appellant was in regard to the mental element of intention to exercise control. (Emphasis as in original)

[31] We disagree.We are of the view that the Judge set out perfectly fairly and succinctly what the defence was.We cannot accept that the way the Judge dealt with this aspect of the case could have left the jury with the view that Greig was accepting that he had physical control of the drugs.It was Greig's position at trial that he had no awareness of the fact any package had been sent to the Grey Lynn post office box held by Ms Knight.The Judge, on a number of occasions in his summing up, made it clear that this contention had to be negated by the Crown.For instance, at p8 of the summing up the Judge noted

Plainly you cannot be said to know you have the ability to control something if you do not know it was there at all.

Indeed, Greig's denial of any awareness of the Grey Lynn package was so fundamental to the case that it could hardly have escaped the awareness of the jury.

[32] Counsel for Greig further complains that the way the Judge summed up left it open to the jury to deploy the Waiwera evidence against Greig in relation to the count alleging possession of cocaine for supply.

[33] Broadly similar complaints were made by Bradley in support of his appeal against conviction.In that case, this court was of the view that the Judge's summing up, read as a whole, did not leave the jury with the view that it could take the similar fact evidence into account against Bradley on the possession of cocaine for supply charge.Indeed this point was made very clearly by the Judge in his summing up.

There is an important aspect that I do need to deal with in that regard and it relates to what the Crown relies on, namely the similarity between the two packets.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.The converse is the case with Mr Greig.He is charged with two importations.You can take the two similarities in accordance with the test I am about to outline to you into account in deciding whether he is guilty of either of the importations.What I am telling you now relates only to the importing charges, not the possession for supply.

[34] So, the Judge in fact did not leave it open to the jury to use the Waiwera package evidence against Greig in relation to the count alleging possession of cocaine for supply.

[35] This was a very conservative direction.On the face of it, the Waiwera evidence was relevant not only to the Grey Lynn importing charge but also the possession for supply charge.Greig was connected with the Grey Lynn package on the Crown case in that he was the link between Bernadette Knight (who left the post office box key with him and his flatmate) and Bradley.At the critical time, Bradley made two telephone calls to Greig.So it was for the jury to determine whether the Crown had proved their association, as evidenced by those two phone calls and the apparent delivery of the post office box key to Bradley, was criminal.If this association was innocent, then it was an absolutely staggering coincidence that at the same time as the Grey Lynn package was despatched from Bogota a very similar package, also containing cocaine, was sent to Greig's post office box at Waiwera.

[36] So we are of the view that the Judge's approach to this aspect of the case was, if anything, too favourable to Greig and certainly does not provide grounds for appeal.

[37] A further area of complaint related to comments made by the Judge about the Waiwera post office box.The Judge said that Greig had been the box holder of box 159 at the Waiwera Post Office since May 1997.This was said to be misdirection because there was no evidence to show that Greig was still the holder in 1999.As well, the Judge, when dealing with a defence contention that as at May 1998 Greig apparently did not have a key to the box, referred to the prosecutor commenting that there was no evidence to show that the original key was not later found or another one was not obtained.The complaint to us was that this comment had the effect of a reversing the onus of proof.

[38] The evidence showed that Greig became the holder of the Waiwera box in May 1997.It was subsequently used by him and Emerson.Prior to March 1999, there had been no formal alteration made to the operation of the box, although, by early 1999, it was predominantly used by Emerson.So, in one sense, there may have been a slight overstatement by the Judge because Emerson was the person who, in early 1999, mainly used the box.However, in the context of this case, this minor overstatement (if it be an overstatement at all) was irrelevant given that it was not the case for either Greig or Bradley that Emerson was involved in the importation of cocaine.Emerson, of course, had no connection with the Grey Lynn Post Office box.

[39] Although there was an indication in evidence that as at May 1998, Greig did not have a key to the box, the comment by the prosecutor to the jury (which the Judge in essence replayed in his summing up) that the key might have been found or a new one obtained after May 1998 was an obvious one.We do not see this as amounting to a reversal of the onus of proof.

[40] A final area of complaint relates to the Judge's approach, in his summing up to the telephone evidence.The Judge reviewed the course of events on 1 March 1999 and he, in particular, referred to the two telephone calls which we have already mentioned.In the course of this he said that the second of these calls involved "again a brief conversation."So it is clear that he assumed that both calls involved actual discussion between Greig and Bradley and summed up on this basis to the jury.Further, the Judge also indicated in his summing up that the cellphone number which Bradley rang had been "allocated to Mr Greig".

[41] Counsel for Greig made a number of complaints referable to these directions.The cellphone number which Bradley rang was not a number which had been "allocated" to Greig.Rather it was associated with a cellphone which he primarily used.Further, Mr Reece contends that there was no evidence that the calls which had been recorded were necessarily conversations.He says the fact that each of them lasted for exactly 42 seconds was consistent with the calls being received by a voice mail system.Thirdly, Mr Reece complained the Judge did not mention in his summing up to the jury the fact that at the critical time on the afternoon of 1 March Bradley made a number of calls to other telephone numbers.

[42] The factual substrata to all of these complaints are made out but we are unpersuaded that they carry the day for the appellant.

[43] The Judge had earlier in his summing up noted that Greig was not the only person who used the cellphone although he did note that Greig had been at work on 1 March (meaning that he probably did have access to the cell-phone that day).As well, when Greig was interviewed by the police on 1 March, he gave that cellphone number as his contact number.Further, and very importantly, it very much seems that it was never suggested to the jury by Greig's counsel (who was not Mr Reece) that there had been no conversations between Greig and Bradley on the afternoon of 1 March.Rather the contention of counsel to the jury as recorded by the Judge was a little different, namely that there was no evidence as to what was said in the conversations. Finally we note that after the summing up was concluded counsel for Bradley complained about a related point in the summing up. This was as to what Bradley had said to the police about the 1 March telephone calls. If counsel for Greig was unhappy about the way that the Judge had directed the jury on the telephone calls this would have been an obvious time to raise that point.But no such point was then taken.

[44] As Mr Dickey noted, strong submissions from Greig's counsel to the jury stressing the possibility that Bradley had made not made contact with Greig via these telephone calls might have invited an adverse comment from the Judge on the fact that Greig had not given evidence - perhaps along the lines that such a contention might have come better from the accused in the witness box rather than from his counsel.

[45] In short, we do not think that the Judge was required to raise with the jury a possibility as to the telephone calls which does not appear to have been raised by Greig's counsel and this probably for good reason.

[46] As to the other telephone calls made by Bradley, we would have thought that those calls would have been of interest to the police.It would, however, have been open to Greig, if he thought them relevant, to have explored the details as to these calls in evidence.It is clear that these calls were not raised at trial as being relevant.Of course, there may well have been very good reason for this.

[47] Once again we are of the view that the Judge could not be expected to raise with the jury an issue which had not been raised by counsel.

[48] So we are of the view the way in which the Judge dealt with the telephone evidence cannot be successfully challenged now.

Failure to put the defence

[49] The Judge's summary of the defence advanced by Greig was, to say the least is succinct.It was as follows:

As far as Mr Greig is concerned on the two counts of importing that he faces his defence is that he did no act which resulted in either of the packages being imported into this country.On the possession for supply charge his defence is that he was never in physical custody of either the Waiwera of the Grey Lynn package and he never had any intention to exercise control over them.

[50] The complaint is that this was inadequate given what counsel called the "complex issues" in the case.

[51] We note however, that the Judge did sum up the evidence and in the course of this necessarily referred to points arising out of the evidence which were favourable to the accused.

[52] Moreover, the case against Greig was circumstantial.As was his right, Greig did not give evidence.Likewise, as was also his right, he did not offer a comprehensive explanation for his behaviour to the police.When the Judge was dealing with Bradley, he discussed in detail Bradley's explanation as given to the police.In contradistinction, Greig's defence was simply that the Crown had not proved its case.In the context of this case, this was a defence which could fairly be expressed briefly - as it was.

[53] The upshot is that we do not accept that this ground of appeal has been made out.

Appeal against sentence

[54] The sentence appeal is only really relevant if the conviction appeal is allowed as the two year sentence imposed on the charge of supplying methamphetamine is concurrent with a longer sentence imposed on the charge of possession of cocaine for supply.

[55] Since we do not proposed to allow the conviction appeal, we can deal with the sentence appeal briefly.

[56] We are not persuaded that the sentence on this charge, even viewed in isolation from the circumstances associated with the possession of cocaine for supply charge, can be regarded as being manifestly excessive.

Disposition

[57] The appeal is dismissed

Solicitors

Crown Solicitor, Auckland