The Queen v Beri [2003] NZCA 78; (2003) 20 CRNZ 170 (29 May 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA5/03CA6/03THE QUEEN

v

WAYNE DAVID BERITONY LONGSTAFFE

Hearing: 26 May 2003

Coram: McGrath J Doogue J Panckhurst J

Appearances: M I Sewell for appellant Beri
R G Glover for appellant Longstaffe
C Ruane and K J Beaton for Crown

Judgment: 29 May 2003

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1] These appeals follow a jury trial relating to drug offences. The appellant Beri was convicted of possession of morphine for supply and conspiring to supply morphine. He was sentenced to 10 years’ imprisonment for the former offence and 8 years’ imprisonment for the latter, the sentences to be concurrent. The appellant Longstaffe was convicted of conspiring to supply morphine and permitting premises to be used for the supply of morphine. He was sentenced to 5 years’ imprisonment for the former offence and 3 years’ imprisonment for the latter, the sentences to be concurrent.
[2] The appeals are against both conviction and sentence. The grounds of appeal against conviction for the two appellants are in part identical. The grounds of appeal in respect of the appeals against sentence differ with the circumstances of the two appellants.
[3] The grounds of appeal against conviction are:

1. Relevant evidence was not disclosed to the appellant Mr Longstaffe and he was wrongly prevented from cross-examining about it. [This point of appeal has no application to Mr Beri’s appeal.]
2. There was an abuse of process as a result of legal or unconscionable conduct by the police.
3. As a result of the abuse of power there was entrapment.

The appellants submit their convictions should be quashed.

Background

[4] A police operation code named “Operation Flyer” led to the arrest in July 2001 of the two appellants and five other persons for various drug charges. The principal charges related to the supply of morphine, particularly morphine sulphate tablets.
[5] It was the Crown case that two supply lines were being operated. The first involved a prescription holder, a Mr Wrathall. Mr Wrathall, using the alias John Nathan, has a standing prescription for morphine sulphate tablets to help with a medical condition. In 1995 he begun to supply a proportion of his prescription for friends and associates, including a Mr Gay, in exchange for cash. Following the arrest and conviction of Mr Gay in July 2000 a Mr Bubbins, now deceased, entered the picture. He regularly drove Mr Wrathall to a pharmacy to collect his prescription. The two would then meet with the appellant, Mr Beri, at various locations. Mr Beri would buy a large proportion of the morphine sulphate tablet prescriptions for cash. It appears that Mr Beri made such purchases from October 2000 until his arrest in July 2001.
[6] The second supply line alleged by the Crown was based on a prescription holder, a Mrs Watson, who also had a standing prescription for morphine sulphate tablets. She, it is said, worked in conjunction with her son, a Mr Spicer, who drove her to the pharmacies to collect her prescriptions. Mr Spicer generally met with Mr Beri and sold half of Mrs Watson’s prescription to Mr Beri for cash. This arrangement appears to have begun in February 2001 and continued until July 2001.
[7] It was the Crown case that there were two primary distribution arms based on the appellant Mr Longstaffe and a Ms Hodson. Mr Longstaffe, it was said, allowed his premises to be used for the supply of morphine to intravenous drug users. The police used video surveillance to monitor the movements of various persons, including some of the co- accused, to Mr Longstaffe’s premises.
[8] The trial Judge concluded that even the most conservative estimate of the operation indicated that probably well over 1000 tables of 60mg equivalent size were distributed. The evidence indicated to him that the value of the drugs involved was probably somewhere between $70,000 and $150.000, or very likely much more.
[9] The two appellants and the five other persons accused with them were charged with various drug offences including a joint charge of conspiring to supply morphine.
[10] Following the committal for trial the appellants applied for pre-trial rulings in respect of the three matters which form the substance of the present conviction appeals.

First point of appeal – discovery of surveillance tapes

[11] At issue was whether the Crown should give further discovery of three video surveillance tapes in relation to premises occupied by Mr Longstaffe filmed on 3, 5 and 11 July 2001. The Crown claimed public interest immunity in respect of such tapes and submitted they should not be required to disclose them. It was argued for Mr Longstaffe that the right to present a defence would be jeopardized unless the tapes could be viewed.
[12] The trial Judge, who dealt with the application, upheld the Crown claim of public interest immunity on the grounds that disclosure of the tapes could lead to identification of police investigative techniques and/or the location/s from which the video surveillance was conducted. The Judge therefore ruled that the detective was permitted to give evidence at trial about contents of the tapes. The Judge reached that finding in accord with the principles discussed in R v McFarlane [1992] 1 NZLR 495 and R v Robertson & Ors (unreported, High Court, Auckland Registry, T992148, 15 November 1999, Potter J).
[13] The Judge went on to consider what he regarded as the more difficult question of whether a miscarriage of justice could arise if the tapes in issue were withheld from the appellants. He found that it would not. He agreed with the conclusion in a ruling in R v Tamati & Ors (unreported High Court, Napier Registry, T1/01, 4 July 2001, Gendall J). He held that there was no real impediment to examination of the police officers and no real prospect of a miscarriage of justice even though defence counsel and the jury would not see the video film or still photographs taken from it. He noted that the detective’s evidence was confined to the number of people she saw coming and going during the specified periods. She could be cross-examined about her observations in exactly the same way as if she had been observing the premises herself. The appellants would have the opportunity of challenging the evidence by calling their own evidence. The evidence was not being called for the purpose of identifying an individual or individuals. The appellants were in no worse position than if the observation had been made by the detective of the premises.
[14] The Judge’s ruling was not then challenged in view of the fact that the evidence based on tapes was restricted by the ruling to the numbers and times of the visitors and was not to include identification evidence.
[15] However, the appellant Mr Longstaffe now submits that the ruling did result in a miscarriage of justice. It is said that Mr Longstaffe was inhibited in his defence by not knowing who had visited his premises, how often and for how long. It is also said that the position changed in respect of the pre-trial ruling when in the course of the trial a witness for the Crown, a Mr Gavin Bruce Tucker, gave evidence of visiting an address next to Mr Longstaffe’s address. In cross-examination he was asked about his contact with the police. He unexpectedly started to reveal that the police had asked him whether they could use the address. Following discussions between counsel and the Judge counsel were permitted to cross-examine in a general manner around the topic but the pre-trial ruling was not re-opened.
[16] It is submitted that the conviction of Mr Longstaffe on the count of permitting premises to be used for the supply of morphine becomes unsafe. It is submitted that conviction depended to a very significant extent on inferences that the jury was invited to draw from the number and frequency of visitors to his address as recorded in the videotapes. It is submitted that many of these inferences may well have been able to be dispelled had the appellants seen the tapes and been able to identify the visitors and explain the purposes of their respective visits. The appellant, Mr Longstaffe, says he may have been able, if he had seen the tapes, to ascertain whom the visitors actually were. He could have called at least some of them to confirm that they were doing there to dispel the suspicion that the property was being used for the supply of morphine rather than for short term prostitution as he had suggested was the case.
[17] The Crown answers these submissions by submitting that on the evidence Mr Tucker did not disclose what the neighbouring premises were to be used for and that there was no change in the position from that arising under the pre-trial decision.
[18] In any event the Crown submits that Mr Longstaffe must have been aware of the names of visitors to his premises or have been able to ascertain who they were as the premises were his. Any suggestion that the premises might have been used for short-term prostitution did not exclude the possibility that they were also used for the sale of drugs. The Crown submits that it was open to the jury to infer that not only were drug buyers visiting the address but that the prostitutes and customers were also doing so or that the latter group also included drug buyers. It is therefore submitted that the appellants cannot show any greater prejudice flowing from the ruling during the course of trial limiting the cross-examination to that that already existed following the pre-trial ruling.
[19] We see no substance in the points now taken for the appellants. The position is no different in principle from what it was at the time of the pre-trial ruling. There was a clear basis for upholding the public immunity claim upon the ground that members of the public could suffer if there was disclosure of where the video cameras were situated. The evidence of the witness Mr Tucker did not change that position. There was no reason for the Judge to re-consider his pre-trial ruling.
[20] Nor is there any material before us that leads us to think that Mr Longstaffe was in any way impeded in his defence at trial or that any miscarriage of justice has arisen. It was always going to be open to the jury to infer that whoever the visitors were to Mr Longstaffe’s premises that they included drug purchasers. The visitors to the premises had to be his invitees or licensees and substantially known to him.
[21] The events at trial did not change that position. Regardless of exactly what passed in respect of the witness Mr Tucker it was too late for any different approach to assist Mr Longstaffe. There is nothing to show that he was impeded in any respect in his defence by the pre-trial ruling or the interchange following the questioning of Mr Tucker.
[22] Mr Longstaffe has accordingly not made out the first point of appeal.

Second point of appeal - abuse of process - illegal or unconscionable conduct by the police

[23] What in substance the appellants are arguing is that certain evidence essential to their conviction should not have been admitted at trial because it was obtained through an abuse of process. The pre-trial application attacked the Crown case on that basis and sought a discharge under s 347 Crimes Act 1961. It is true that the appellants cannot appeal from the s347 discharge. They are, however, entitled to appeal against their convictions upon the basis that they were achieved through an abuse of process.
[24] The trial Judge summarised the background to this issue in the following way:

[15] According to the evidence at depositions of Mr Shaw, a pharmacist, the accused Wrathall obtained a prescription for morphine sulphate tablets and began collecting tablets from Mr Shaw’s Christchurch pharmacy on 27 February 1995 under the alias John Nathan. This continued until his arrest on 12 July 2001. Evidence was also given at depositions by Sergeant Borrell that on 25 November 1997 he and another officer were observing a Christchurch property as part of another police operation concerning retail supply of morphine sulphate tablets when they saw Wrathall visit that property for approximately one minute. When he was searched a short time later he was found to be in possession of cash amounting to $400 and it was noted that he had a number of “track marks’ on each of his arms. Detective Sergeant Earl also gave evidence at depositions that on 5 July 2001 he individually marked tablets prescribed for Wrathall. These tablets were subsequently recovered.

[16] Detective McGowan explained that Operation Flyer arose from an earlier operation which had culminated in the arrest of David Ford Gay in July 2000. Shortly before Gay’s arrest Bubbins and Wrathall were observed to visit Gay’s address. It was only after Gay’s arrest, probably around August or October 2000, that the police realised that Wrathall and Nathan were one and the same person. The detective did not accept that the police knew on 25 November 1997 that Wrathall was selling morphine sulphate tablets prescribed by Mr Shaw’s pharmacy, although he accepted that this information might have been available if Wrathall’s identity had been checked at that time.

[25] The Judge went on to summarise the submissions before him on behalf of the appellants, namely, that the police knew as early as 25 November 1997 that Wrathall was selling the tablets prescribed to him but elected to do nothing about it. On that basis it was submitted that the police were effectively aiding and abetting him in the commission of the offences charged and that this conduct amounted to an abuse of process.
[26] The Judge found:

[18] To my mind defence counsel have overstated the role of the police. While with the benefit of hindsight it might have been possible for the police to have connected the incident on 25 November 197 with the fact Wrathall was drawing a morphine sulphate tablet prescription, Detective McGowan made the very valid point that in 1997 Detective Sergeant Borrell would not have been privy to a statement made by Wrathall after his arrest in which he acknowledged supplying morphine sulphate tablets over a number of years. There is also the problem that Wrathall was using an alias. I reject the defence proposition that the police knew as early as November 1997 that Wrathall was selling his prescription drugs and that they should have put an end to the illegal activities at that time. I accept that in fact the connection was not made until around August – October 2000. Having made the connection it was for the police to decide upon the best strategy for apprehending the offenders. They decided to conduct a surveillance operation extending over eight to eleven months and I cannot accept that there was anything untoward about that decision or the operation that followed.

[19] It is an overstatement to suggest that the evidence indicates that the police directed the pharmacy to continue supplying Wrathall. This is reading rather too much into the acknowledgement by Detective Henderson at depositions under cross-examination that the police had “wholesale co-operation from pharmacies during Operation Flyer”. On my reading of the evidence it would be more accurate to say that the police allowed the supply of tablets to continue and ultimately marked tablets for tracing purposes so that they could identify those involved and bring them to justice. Beri and Longstaffe cannot blame the police for any involvement that may be proved against them.

[27] Accordingly the Judge determined that the available evidence did not establish that the actions of the police were illegal or unconscionable or that they amounted to an abuse of process.
[28] The appellants submit, regardless of when the officer in charge became aware that Nathan and Wrathall were the same person, that the police had known for some two or three years that he was selling his tablets and, in any event, even after the officer in charge became aware that Nathan and Wrathall were the same person, the police continued to allow him to sell tablets from somewhere about mid-2000 until July 2001. It is accordingly submitted for the appellants that the police deliberately and calculatedly allowed a very substantial number of morphine sulphate tablets to enter the black market. It is said that this was clearly for a minimum period of approximately one year with an inference being available that some members of the police knew that it had been going on for a substantially longer period.
[29] It is further submitted for the appellants that in so acting the police enlisted the assistance of a pharmacist in a manner which caused him to breach provisions in the Code of Ethics principles of the Pharmaceutical Society of New Zealand. He knew that from at least some time around mid-2000 that Wrathall and Nathan were the same person and that the one person was simultaneously receiving prescriptions for morphine under two names and for methadone under one of those names. Reference was made to the various principles in the Code of Ethics – it is unnecessary for them to be spelt out here.
[30] It is accordingly submitted for the appellants that the actions of the police were illegal and unconscionable and an abuse of process. It is submitted that they had the result of permitting a recognised social evil to continue when it could have been stopped. It also said it permitted the involvement of a number of people including the appellants to engage in illegal activities that they would otherwise have avoided. In this respect it is submitted the police approach can be said to be causative of the very conspiracy for which they subsequently charged the appellants. It is noted for the appellants that there appears to be no statutory provision authorising the police to permit or promote the dispensing of a prescription for purposes which the police know to be illegal: compare the exemption provisions of Misuse of Drugs Act 1975 s8 and Misuse of Drugs Regulations 1977.
[31] It has to be noted that the trial Judge rejected the submission that the police had been actively involved in the pharmacist’s actions. Rather in his view it was a case of the pharmacist being allowed to continue to supply.
[32] There is no suggestion that the police actively encouraged, induced or were otherwise parties to the actions of the conspirators.
[33] As the trial Judge found the appellants were responsible for their own actions. The police neither encouraged nor actively assisted with those actions. Permitting them to occur for the purpose of ascertaining the nature and extent of the criminality had to be a matter for the police as the law enforcement agency.
[34] That that is so is made clear by the decision of this Court in R v Smith (Malcolm) [2000] 3 NZLR 656, 665, where it was said:

[37] Finally, we are not persuaded that the conduct of the police in allowing Mr Bright to continue offending from February to August, and for drugs to be distributed through the community and associated offending to fund drug purchases to occur, can be characterised as unfair and calling for the exclusion of the evidence. There are compelling public interests. The reality of the situation the police faced was that, if they were to serve the strong public interest in investigating and obtaining sufficient evidence to establish the gravity of the offending of the appellant as a very substantial supplier of drugs, they had to tolerate the offending that would occur in the distribution of those drugs and associated offending in the meantime. On the evidence canvassed at the voir dire and at trial we are satisfied, as was Ellis J in his ruling after the voir dire, that they were entitled to make that judgment. Again, this is not a case where with the benefit of hindsight the Court could properly say that in the exercise of their judgment the police should nevertheless have terminated the operation earlier and by doing so have reduced the harm to the community.

[35] This case is stronger than Smith, as here there is no suggestion of any active encouragement by the police of what occurred. As in that case there is nothing to show that the police should have intervened earlier. The argument is made that the police should have acted sooner but it is a matter of discretion and we are in no position to second-guess the decision taken in this case. The appellants have accordingly failed to make out that there was any abuse of process by the police. There is thus no substance to this ground of appeal.

Third ground of appeal - entrapment

[36] The trial Judge dealt with this topic in the following manner.

[21] While defence counsel recognised that a reasonable period of observation and evidence gathering may be necessary in an operation of this type they submitted that as soon as sufficient evidence for an arrest has been obtained the police should have moved to prevent the further commission of crimes. They claimed that in this case the continuing commission of offences by Wrathall was “condoned, indeed promoted, by the police” over a four year period during which time numerous other people including Beri and Longstaffe were drawn into the police net. It was argued that these actions on the part of the police amounted to entrapment.

[22] To a large extent conclusions already reached under the abuse of process head count against the entrapment argument. In particular any suggestion that the police condoned or promoted Wrathall’s offending over a four year period (or any period) is unsustainable. There is a well settled distinction between police actions which merely provide the opportunity to those so disposed to commit offences, on the one hand, and the sort of active encouragement that may result in a crime being committed by the offender that would not otherwise have been committed, on the other. See, for example, Police v Lavalle [1993] 1 NZLR 45 (CA) and R v Perston (CA509/93, 30 May 1994). I have no doubt that the conduct of the police did not fall on the wrong side of the dividing line with the result that entrapment has not been established.

[37] The appellants have repeated the submissions put before the trial Judge. They accept there was no active encouragement by the police of what occurred and that therefore the same considerations apply under this head of appeal as under the last. Accordingly this ground of appeal also fails.

Appeal against sentence by Mr Longstaffe

[38] Mr Longstaffe was sentenced to five years imprisonment on the conspiracy count and to three years concurrent on the count of permitting his premises to be used for the supply of morphine. It is submitted that these sentences were manifestly excessive particularly when measured against the sentences imposed on the co-offenders Messrs Wrathall and Spicer. The trial Judge accepted that the appellant’s offending was not quite at the level of Mr Wrathall’s. On the other hand although he accepted that Mr Spicer was actively selling drugs he took the view that Mr Longstaffe’s offending was at much the same level. Mr Wrathall had been sentenced by another Judge after a plea of guilty. He had been sentenced to five years imprisonment after an allowance of two years discount for his plea of guilty from a starting-point of seven years imprisonment. He was not only a co-conspirator but a supplier to Messrs Gay and Beri. Mr Spicer had also been sentenced by another Judge after a plea of guilty. He had been sentenced to four years imprisonment for selling morphine sulphate and four years for his participation in the conspiracy after his pleas of guilty. However the starting-point taken was six years with a discount to the lesser figure.
[39] Whether viewed independently of the other sentences just traversed or viewed in the context of them, as we are invited to do, we can see nothing manifestly excessive about the sentences imposed upon Mr Longstaffe. We regard them as well within the Judge’s permissible sentencing range. The Judge was entitled to place Mr Longstaffe and Mr Spicer at a lower level than Mr Wrathall and Mr Beri who received higher sentences. In context the sentence of five years imprisonment imposed upon Mr Longstaffe took into account all relevant circumstances relating to him and the other offenders and both the starting-points and concluding points for sentence were well within the sentencing Judge’s discretion. To the extent that it is suggested that there was some disparity with the sentences imposed upon co-offenders the submission has no substance. Mr Wrathall’s greater involvement was reflected in the starting-point for his sentence. While the involvements of Mr Spicer and Mr Longstaffe were different, the sentencing Judge was entitled to take a view that they were broadly comparable. The ultimate difference between their sentences was a reflection of the fact that Mr Spicer had pleaded guilty.

Sentence appeal by Mr Beri

[40] The position of this appellant is very different from those of his co-offenders. The sentencing Judge regarded the appellant’s offending as at the top of the second category in R v Wallace and Christie [1999] 3 NZLR 159. He took a starting-point of eight years imprisonment. He viewed the appellant Mr Beri as having a leading role in the conspiracy operation. Indeed he described Mr Beri as “at the centre of things and that your role was a crucial role in this operation which was a relatively sophisticated operation.” He then referred to two aggravating features of this appellant’s offending namely that it had occurred while the appellant was on parole in respect of a life sentence imposed in 1985 for conspiring to supply heroin with that being but one of a number of serious offences involving drugs or related to them. In addition as noted for the Crown he was engaged in the criminality solely for profit and was not himself a user, unlike a number of his co-offenders. The Judge took the view that the aggravating features relating to this appellant’s offending should attract a further two years imprisonment and in the result the appellant was sentenced to ten years imprisonment for the possession for supply offence with a concurrent sentence of eight years imprisonment for the conspiracy offence.
[41] It is common ground that Mr Beri’s offending began at the latest at the end of October 2000 until 12 July 2001. He had been released from prison in October 1999. It was part of the Crown case that Mr Beri had taken over the role that Mr Gay previously had as being the intermediary between the wholesalers and the retailers. That was accepted by the sentencing Judge. However it does not seem that the sentencing Judge was fully appraised of the position of Mr Gay. Mr Gay was sentenced to six years imprisonment in the District Court at Christchurch on 15 January 2001 after pleading guilty to the supply of morphine and possession for supply, with the Crown accepting that he was a user. The sentencing Judge had taken eight years imprisonment as a starting-point and applied a discount of two years for the plea of guilty to reduce the sentence to six years imprisonment. He had come to the starting-point in much the same way as the Judge did here.
[42] It also seems significant that Mr Wrathall who was a key to a supply chain for a substantial period of years, received an effective sentence of seven years. It is true that he does not have Mr Beri’s awful record and was not offending while on parole. But as against that he was offending for a very much longer period of time.
[43] We are of the view that in placing Mr Beri at the top of the second category in Wallace and Christie and taking a starting-point of eight years as reflecting his leading role in the conspiracy the sentencing Judge was at least to some extent already reflecting the aggravating circumstances of Mr Beri’s offending. We consider that if his sentence was to be proportionate to those imposed upon Messrs Gay and Wrathall in particular as they were the other offenders of comparable significance then it would have been more appropriate if there had been no addition to the eight year starting-point taken by the Judge. In the overall picture of respective criminality even after allowing for the aggravating features already referred to we consider that a sentence of eight years imprisonment would have adequately recognised Mr Beri’s role.
[44] We therefore think it appropriate to allow Mr Beri’s appeal against sentence and to quash the sentence imposed upon him of ten years imprisonment for possession for supply and substitute a sentence of eight years imprisonment for that offence. The concurrent sentence of eight years imprisonment for the conspiracy remains.

Result

[45] The appeals against conviction and Mr Longstaffe’s appeal against sentence are dismissed. Mr Beri’s appeal against sentence is admitted to the extent just mentioned.

Solicitors:
Crown Solicitor’s Office, Christchurch