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DORA v R [2005] NZCA 162 (23 June 2005)

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DORA v R [2005] NZCA 162 (23 June 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA380/04

THE QUEEN

v

DAN DORA

Hearing: 15 June 2005

Court: Hammond, Baragwanath and Potter JJ

Counsel: N G Cooke for Appellant
H D M Lawry for Crown

Judgment: 23 June 2005

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS
(Given by Baragwanath J)

Table of Contents

Para No

Introduction [1]
Background facts [3]
The first ground: misdirection as to legal ingredients of possession [16]
The summing up [16]

The second ground: failure to give appropriate direction in terms
of s 12C [23]
The third ground: the Judge misdirected the jury when giving a
lies direction [35]
The fourth ground: omission from the answer to the jury question of
reference to the s 12C and lies topics [39]
Result [45]

Introduction

[1] The appellant was convicted by a jury in the High Court at Auckland on 14 August 2004 on two counts, one of importing into New Zealand the class B controlled drug MDMA, commonly known as Ecstasy, and the other of having such drug in his possession for the purpose of supply. He was sentenced by the trial Judge, Panckhurst J, to nine and a half years imprisonment.
[2] The appeal is against conviction on the grounds:

a) The Judge misdirected the jury on the legal ingredients of possession;
b) He failed to provide the jury with a special caution when considering the evidence of a party, Callies, in terms of s 12C of the Evidence Act 1908; and
c) He misdirected the jury when giving a lies direction.

Background facts

[3] The appellant, an Israeli national whose English is limited, arrived at Auckland International Airport on 28 July 2003 on a flight from Amsterdam via Korea. A search revealed what he admitted was a pipe for smoking cannabis. In the early afternoon he was released and left the baggage hall. He checked into Auckland City Centre Hotel on the corner of Albert and Wellesley Streets and paid a deposit for two nights accommodation. On the afternoon of 30 July he booked into the New President Hotel also in Wellesley Street until 1 August 2003.
[4] At about midday on 30 July 2003 Callies, a German national, arrived at Auckland International Airport from Paris via Singapore having travelled to Paris by train from Amsterdam. A customs search revealed 61,700 Ecstasy tablets concealed in a compartment inside the suitcase. The street value of the tablets was between $3 m and $6 m. Callies was later convicted in relation to importing the controlled class B drug Ecstasy. He was sentenced to four and a half years imprisonment.
[5] At his initial interview by a detective, Callies agreed to help the police and he was the principal witness for the Crown at the appellant’s trial. He said in evidence that he had met the appellant in India in June 2003 and that in Kasol, in the presence of the appellant, Callies and one Leron, another Israeli national, discussed bringing hashish from India to Milan in Italy. They later went to Delhi to a hotel nominated by Leron who said that there would be a suitcase ready in a couple of days. Callies said that Leron made an appointment for him to meet the appellant at a café in the centre of Delhi to pick up the suitcase. Callies said that the appellant arrived with a grey suitcase which he gave to Callies. Callies told the appellant to bring it to the hotel. The suitcase was identified as the one searched by customs when Callies entered New Zealand. Callies said that Leron had agreed to pay him US$10,000 for carrying the suitcase from Delhi to Milan.
[6] Callies said that from Delhi he went by train to Mumbai and flew Swiss Air via Zurich to Milan arriving on 1 July. The appellant was waiting for him outside his hotel. The appellant removed the hashish from the suitcase, put it in Callies’ shoulder bag and carried it away. A fortnight later the appellant paid Callies €4,000. The appellant’s Navneet notebook records that on 15 July he received €5,000 and "I gave to a friend €4,000". Callies was told that he was to make a further run, to New Zealand, for which he would receive further money in Amsterdam.
[7] In mid-July Callies left Milan, arriving in Amsterdam on 22 July. He telephoned the appellant and they met in his hotel room. The appellant gave him about €1,900 for an air ticket to New Zealand and instructed him to take an expensive airline such as British Airways which, unlike a cheap airline, was not suspicious. He was to be in New Zealand the following Tuesday, 29 July.
[8] In Amsterdam the appellant gave Callies the same suitcase. Although Callies suspected that it contained Ecstasy, which usually comes from Holland, nothing was then said by the appellant on that score. The appellant instructed Callies, on arrival in New Zealand, to call Leron in India immediately and to go to the City Central Hotel. The appellant provided Callies with a Nokia cellphone for which he was to buy a SIM card in Auckland. Callies was expecting $10,000 for bringing the drugs into New Zealand.
[9] Following his apprehension at Mangere on 30 July, Callies signed a consent form allowing the police to place a listening device on him. On arrival at the hotel, he telephoned Leron as instructed using a telephone which the police had tapped. Leron said "You take a... while... eh... you know." Callies replied "Takes a while and the bus from the airport and you know." Leron said "Everything good." Callies replied "Everything fine yeah." Leron said "You buy a phone and I call you..." Callies said "Okay, I have to get the SIM card and then I give you the number... then I ring you back."
[10] The next morning at about 9.30 am the appellant called Callies and instructed him to meet the appellant. The transcript of the discussion records the appellant saying "Nobody can come here and... the money is not ready." Callies said "Oh man the money’s not ready." The appellant said "Ah ready and not ready something like this..." The appellant asked "How are you good. Yeah." Callies said "I want to go tomorrow I want I want I want my money." The appellant said "Mmm look... what’s going on with you in the why you late to..." Callies "Quite late." The appellant "You be. You need to come in ten o’clock." Callies "No, no, no my my my flight was a bit late..." The appellant "Now I must go to bank..." Callies "...Westpac". The appellant "There, there, everybody there think the Police ah find and take you, now you out and like you...". Callies said "Not my fault that I get, don’t get money soon." The appellant said "Ah it’s not because you don’t maybe no good okay but I tell you this not be like in eh Milan..." Callies said "Leron told me like that two days and I can go." The appellant said "...then why you come for one day two days then you go, this might a little suspicious." Callies "Yeah suspicious." The appellant "Suspicious. You understand."
[11] The conversation on 31 July at 12.15 pm was recorded after the appellant’s arrival at room 708 at the New President Hotel, and was in Callies’ presence. The appellant asked "Where is the... We can see?" Callies replied "Sure. I have here other stuff. I took it already off my, my stuff because I thought you, you get the bag, so." The appellant replied "Oh. But you know what you know when why somebody come here... I think you... good, good." Callies said "So you also have to wait for Leron. How many times different is it?" The appellant said "I think seven hours...". Callies said "Sure. 6 o’clock in the morning. So what what’s the matter with Leron’s phone. With Leron’s phone why was an Indian answering." The appellant said "I don’t know, I tell you don’t call this number." Callies said "Yesterday I have to call this number." The appellant said "No." Callies said "Because there was no no no no answer on other phone." The appellant said "I tell you what you for now you with me you don’t need to call to Leron any more you know if ah, I don’t know."
[12] At 3.26 pm there was recorded another telephone conversation between the appellant and Callies. The appellant asked Callies "Can you come..." Callies replied "Oh I heat my room and it’s so nice here so I." The appellant said "Ah please." Callies responded "Ah." The appellant said "Please come my room because if I drink beer and I don’t smoke one cigarette I you know... Just come." Callies replied "Yeah okay, I come soon..."
[13] From 3.29 pm a further conversation with the appellant was recorded on Callies’ body microphone. The appellant said "Why you are you want?" Callies said "I want the stuff out of my room." The appellant said "I need to..." Callies said "You know, you know what it is actually." The appellant said "Yeah." Callies said "What?" The appellant said "Ah Ecstasy." Callies said "Ecstasy. And how much. Was was heavy must be a lot yeah." The appellant "I don’t know." Callies "Because." The appellant "I think, I think, I don’t rec I absolutely not but I think." Callies said "Because when I, when I checked in the airport the bag was 31 kg and you saw my stuff it’s not a lot." The appellant "Yeah." Callies "So how, how much is it how." The appellant "I don’t know..." Callies said "Ecstasy." The appellant said "You want Ecstasy..." The conversation was interrupted when the police entered the room and arrested the appellant and Callies.
[14] The appellant’s contention is that it was Callies and not the appellant who was talking about Ecstasy; that there were gaps in the tapes and no solid evidence establishing the correctness of Callies’ account.
[15] The appellant elected to give evidence and admitted meeting Callies and Leron in Kasol and later seeing Callies in Milan. He denied any discussion about or involvement with drugs. Although he went to Amsterdam he denied meeting Callies there. He admitted that when he got to Auckland he called Leron. He told him that Callies was in the country. They arranged to meet. He denied any connection with the suitcase.

The first ground: misdirection as to legal ingredients of possession

[16] In summing up the Judge provided the jury with an issues sheet in the following form:

R v Dan DORA
The Crown must prove beyond reasonable doubt:
Count one (importing MDMA)

(a) that Andre Callies imported (brought) Ecstasy into New Zealand on 30 July 2003, and

(b) that Dan Dora was a party thereto in that:

- he intentionally arranged, assisted or encouraged the importation

- knowing the suitcase contained controlled drugs.
Count three (possession of MDMA for supply)
(a) that on 31 July 2003 Dan Dora was in control of the suitcase
(b) knowing it contained controlled drugs, and

[(c) having the purpose (intention) of supplying the drugs to another person or persons]
Notes:

(i) where the weight of the tablets containing MDMA is 5 grams or more the possessor is deemed by law to have the drugs for the purpose of supply.
(ii) to displace that presumption Dan Dora must satisfy you on the balance of probabilities that he did not have the drugs for supply to another/or others.

[17] In relation to the possession count the Judge directed the jury as follows:

[27] The second one which I have actually called count three because that is what it used to be in our first indictment before count two was removed, is possession of the MDMA for supply. There the Crown must prove two things, although I have identified three. The first is that on 31 July Dan Dora was in control of the suitcase. I will talk about control in a moment and secondly, the same element, that he knew it to contain a controlled drug, and thirdly, and I have put it in brackets for a reason which I will explain, that he had the purpose or intention of supplying the drugs to another person or persons. Those are the elements of possession of a drug for supply.
[28] This pen (shows) obviously is in my possession because I have got physical custody of it right now. But equally a pen that is in my home in Christchurch sitting in my desk drawer is in my possession as well, just as your possessions which are at home are in your possession because they are in your control. You can control them. You have the ability to deal with them as you choose. They are within your control, albeit not immediately in your hand and that is what is said here. The Crown alleges that although the suitcase at all times remained in Mr Callies’ room, that it was within the control of Mr Dora because he could at any time take it from Mr Callies and indeed that Mr Callies was asking him to do so but he chose not to. So what is alleged is possession in that sense, that he had the control over the suitcase.
...
[30] Of course we have heard no evidence [to displace the statutory presumption of supply] from Mr Dora and nor could we because he has said at all stages, I was not in control of that suitcase. It was Mr Callies’ suitcase. It is nothing to do with me. So he has not sought to rebut the presumption. Rebutting it is important in cases where people say, yes, the drugs are mine but I only intended them for my own use and not for supply to others. I have had to explain that to you but it is really irrelevant because the contest here is in relation to the first element, the one I have identified as (a), was Dan Dora in control of the suitcase? Had he given it to Andre Callies in the first place? Was he here as an overseer and did he have the right to control it, to take it whenever he chose? That is why there is such a connection between the two charges. They get back to that same common background.

[18] The jury required further definition of "control" and the Judge responded:

Control in the context of this case means that the accused had the ability to uplift, to take delivery or custody of the suitcase on demand. This means that you must be satisfied beyond reasonable doubt that on 31 July 2003 at the New President Hotel Mr Dora could take delivery of the suitcase at will. If that is the case then he was in control of it, and therefore in possession of it, despite the fact the suitcase happened to be in another room, the room occupied by Andre Callies. That is the definition of control.

[19] For the appellant Mr Cooke cited s 2(2) of the Misuse of Drugs Act 1975 which provides:

(2) For the purposes of this Act, the things which a person has in his possession include any thing subject to his control which is in the custody of another.

[20] He submitted that in this case the suitcase containing the drugs was in the custody of Callies not of the appellant. He submitted that at para [28] the Judge misdirected the jury by suggesting that the pen in the Judge’s home in Christchurch was in the Judge’s possession: that the jury would infer a direction that the appellant was in possession of the suitcase in Callies’ room. In oral submissions Mr Cooke was unable to sustain the challenge to the Judge’s summing up which we consider was admirably direct, concise, accurate and helpful.
[21] The summing up concerned a contest between the Crown’s account that the appellant had supplied the suitcase containing the drugs to Callies in Amsterdam and was entitled to resume control of it from his courier at any time, and the defence case that the appellant had nothing to do with the suitcase and its contents which were entirely Callies’ affair. Para [28] was an expression of the legal result of accepting the Crown case, the denial of which by the defence was the subject of para [30].
[22] A less experienced and confident judge might have chosen to give a more complex direction about the mental and physical elements of possession. But measured by the practical test of whether the jury received a clear and correct account of how they should approach their fact finding task in this case, the direction was exemplary, as in the end Mr Cooke was constrained to acknowledge.

The second ground: failure to give appropriate direction in terms of s 12C

[23] Section 12C of the Evidence Act 1908 provides:

12C Witnesses having some purpose of their own to serve
Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his or her own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.

[24] In its terms it simply requires the Judge to consider whether the jury should be directed on the need for special caution.
[25] The exact terms of the direction to be given by the Judge are a matter for the Judge’s discretion: R v K [1984] 1 NZLR 264 at 268. As observed by Lord Hailsham LC in DPP v Kilbourne [1973] AC 729 at 740:

A judge is almost certainly wise to give a... warning about the evidence of any principal witness for the Crown where the witness can reasonably be suggested to have some purpose of his own to serve in giving false evidence.

The Lord Chancellor alluded to the former requirement to warn of the danger to found a conviction on the evidence of certain witnesses or classes of witness unless that evidence is corroborated in a material particular implicating the accused.

[26] While in New Zealand the corroboration rule has almost completely disappeared, it remains wise to give a suitable warning to avert risk of miscarriage where the s 12C factors exist. These considerations were plainly in the Judge’s mind. He directed:

[31]...The reality of the case is... that the charges do not involve any real difficulty. The Crown case is that Mr Callies was given the suitcase by Dan Dora, that it contained the drugs, that he was also given money to buy his plane tickets. He was given instructions to book into the City Central and then told to transfer to the New President. That he was supplied with a Nokia phone and that Mr Dora came to New Zealand for the express purpose of meeting him. That he was, in short, an overseer. If you accepted that as the true version of events it would really follow as night follows day that Mr Dora was a party to this importation and did have control of the suitcase for the purpose of giving it onto the next person in the chain. So that the real issue in the case is no technical legal issue to do with the charges, but has it been proved beyond reasonable doubt that Mr Callies’ version is the correct one. That is the real crux of the case but nonetheless I have had to explain the charges to you in all their technical detail.
[32] Who has told the truth? More particularly can you accept what Mr Callies said on Monday and Tuesday beyond reasonable doubt in the context of all the surrounding evidence? I agree with the proposition that Mr Hart put to you towards the end of his closing argument. Care is obviously necessary in relation to your assessment of Mr Callies’ evidence. He was caught in the act of importing a very substantial quantity of Ecstasy. He confessed to the fact because he had no choice but to do so, to admit that he was a courier of that drug, and it could well be the case that a person who is caught in possession having just imported such a quantity of controlled drugs could have a powerful reason to lie. Is that why he has implicated the accused, as Mr Hart has argued to you. So it is obviously important that you approach Mr Callies’ evidence with particular care. It is only common sense when somebody has been caught in this situation that we would approach what he says with particular caution. There will be a number of important questions that you will want to consider in that regard. He has already been sentenced. Is there a continuing reason for him to lie and to implicate Mr Dora? Mr Hart said there was because he was still awaiting parole.

[27] When pressed for a submission as to what was omitted from or wrongly stated in the Judge’s direction, Mr Cooke was in the end unable to respond.
[28] Mr Cooke then submitted that the Judge erred in dealing with the s 12C topic in relation to the following paragraph:

[33] Perhaps even more important is the question, well does his evidence add up? When we look for other evidence which either confirms or contradicts Mr Callies’ account where are we taken? Is there corroboration to use a word which Mrs Freyer used, of his version of events? If there was, well then, despite the need for caution, you may well think there would be a sound basis for accepting his evidence and I will come back to that later.

[29] Mr Cooke submitted that the Judge failed to return to the topic of the need for caution in considering Callies’ evidence.
[30] In fact the Judge did return to that topic in his summary of the cases of the parties. In relation to the Crown case he said:

[Crown counsel] acknowledged that Mr Hart would, as he did, argue that Mr Callies was a liar and that his account was untruthful. So she then devoted the rest of her argument to you to looking at the other evidence, the independent evidence, to see what support there was, or corroboration there was, for Mr Callies’ account. She suggested to you that there was really an abundance of evidence which supported Mr Callies and really did not fit comfortably with Mr Dora’s version.

[31] He then recounted the evidence which the Crown submitted confirmed Callies’ veracity, including the coincidences of their travel patterns in India, Milan, Amsterdam and Auckland and entries in the appellant’s notebook.
[32] Then at para [42] and following he summarised the defence case:

[42] Mr Hart, of course, disagreed totally [with the Crown’s contentions]. He began by saying that there were some basic propositions which didn’t add up and which were inconsistent with Mr Callies’ account...
[45] He then turned specifically to Mr Callies and said, well he is really the central pillar of the Crown case and he urged you, as I have already, to take care in relation to his evidence. He rightly said, here is a man who is a self-confessed drug courier, caught in the act and called upon to produce an explanation. Mr Hart said to you he was a skilful liar but one who had been successfully discredited by his cross-examination....
[48] He pointed out that Mr Callies had procured a lesser sentence because, as the police officers have said, his cooperation resulted in the letter that was provided to the sentencing Judge and Mr Hart said, well he had an ongoing obligation to stick to his story, to implicate Mr Dora, because once he had said that, he was caught up in that explanation and he could not resile from it, even although his sentencing had passed.

[33] We are satisfied that the need for caution in considering Callies’ evidence was put clearly and fairly.
[34] Following the oral argument as to these matters Mr Cooke advanced a further submission that, even if the summing up as originally delivered could not be effectively challenged, it was the Judge’s duty in answering a jury question some 24 hours after the jury’s retirement to return both to the s 12C topic and to that of lies. We will return to that submission after considering the third ground of appeal.

The third ground: the Judge misdirected the jury when giving a lies direction

[35] At para [35] of the summing up the Judge gave the following direction:

[35] In the course of her cross-examination of Mr Dora yesterday Mrs Freyer on a number of occasions accused Mr Dora of having lied. For example in relation to the notebook where he had written that he gave money and that he gave a phone to a friend in Amsterdam. When she had questioned him about that she went the distance of saying, that is unbelievable and you are lying. If you were to conclude that Mr Dora had lied about a matter such as that, or some other matter, where does that take you? What I wanted to say to you was this, that the fact of a lie does not necessarily establish guilt. People can lie for various reasons. They may lie because they are guilty but they may lie out of stupidity or for other reasons. So do not approach the case on the basis that if you determine he has told a lie about this or that, therefore he is guilty. The proper approach is rather to say that if you determine he has told a lie about something, and that is a question entirely for you, I am not saying he has, if you determine he has told a lie its true significance lies in the fact that you will say to yourselves, if he has lied about an important detail, it must affect our overall assessment of his version of events. Approach it in that way.

[36] Mr Cooke submitted that by concluding the lies direction with the underlined passage the Judge should have gone on to issue an additional s 12C warning because the lies direction related only to the evidence of the appellant and not that of Callies.
[37] We do not agree. The lies direction is in common form. It contained a slip – "it must affect our overall assessment" rather than "it may affect our overall assessment of his version of events". But the summing-up is to be viewed as a whole and in context. The Judge had directed the jury properly both as to Callies’ evidence and as to their function and that matters of fact were for them. The slip of the tongue in an oral summing up could not possibly have misled the jury so as to risk injustice. And indeed Mr Cooke did not so contend.
[38] We agree with Mr Cooke’s submission that the close attention given to the alleged lies by the appellant required proper balance in directing about the evidence of Callies. But there was no lack of balance. The third ground fails.

The fourth ground: omission from the answer to the jury question of reference to the s 12C and lies topics

[39] We have indicated that in oral argument Mr Cooke developed a new submission. On Saturday 14 August 2004, the second day of the jury’s retirement, the following was recorded by the Judge’s Associate:

Judge:
Ladies and gentlemen, I have your question which I will read:

"We need clarification, expansion, about ‘intentionally’ arranging, assisting or encouraging the importation."

The word "intentionally" means nothing more than deliberately and I don’t think I can add anything more than that about it. The words "arranged, assisted or encouraged" the importation are ordinary words and they have their ordinary meaning. An act of assistance, an act which arranges the importation of the drugs, or an act which encourages the importation of the drugs. All of those things would make Mr Dora a party to the importation. I didn’t explain those words in any greater detail because they are ordinary words which have their ordinary meaning.
But secondly as I went on to say to you, in this case if you accepted the Crown version based on what Mr Andre Callies said, then there was no question that Mr Dora was a party to the importation because on Mr Callies’ evidence, he supplied the suitcase, it had the drugs in it, he supplied money, he supplied the phone, he gave instructions and then he came to New Zealand in order to be here and take the drugs off Mr Callies after they had been got through customs (if they had been successfully). So the Crown case, in summary, was that he was somebody who arranged the whole thing and then completed it off in his capacity as an overseer. So the other remark I made to you yesterday, and I repeat again, is that there is no particular magic in those words, intentionally arranging, assisting or encouraging the importation. The real issue in this case is whether you accept the Crown case as proved beyond reasonable doubt and that is, do you accept what Mr Callies has said as to how this importation came about? If you do then it follows as night follows day that Mr Dora was a party to the importation.
If you are not satisfied of that beyond reasonable doubt, that it happened as Callies has described it, well then he wouldn’t be shown to be a party to the importation. So there’s no difficulty in the words that you have identified. The difficulty is in deciding which version of events you accept and whether the Crown version is proved beyond reasonable doubt. That’s as much as I can say in answer to the question. I am conscious of the fact that you have now been considering your verdicts since about this time yesterday, 24 hours ago, which is quite a long while. Do you feel you are still making progress? (Yes).

[40] Mr Cooke submitted that the Judge did not confine himself to giving a short answer to the question but went on in a passage commencing "But secondly..." to give a synopsis of what he described as the real issue in the case. Mr Cooke submitted that at that point, after a 24 hour retirement, it was incumbent on the Judge to repeat his s 12C direction in relation to Callies’ evidence and the direction relating to alleged lies by the appellant.
[41] Implicit in the argument is either that the further direction lacked balance or that after a day’s retirement they required a reminder of the major themes in the summing up.
[42] No authority was cited for the latter proposition which, if right, would require consideration in the case of any lengthy retirement of whether further direction was required and, if so, in what terms. The suggestion is wrong in principle. To sum up again in part would risk lack of balance, and to do so in full would be likely to irritate the jury as an unnecessary distraction from their task of working through to a verdict.
[43] There remains the question whether there was lack of balance in the further direction. We are satisfied that the Judge’s intervention was appropriate and fair, responding substantially to the point that must have underlain the jury’s question.
[44] The fourth ground also fails.

Result

[45] It follows that the appeal must be and is dismissed.

Solicitors:
Crown Solicitor, Auckland

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[1]	The appellant was convicted by a jury in the High Court at Auckland on 14 August 2004 on two counts, one of importing into New Zealand the class B controlled drug MDMA, commonly known as Ecstasy, and the other of having such drug in his possession for the purpose of supply. He was sentenced by the trial Judge, Panckhurst J, to nine and a half years imprisonment.
[2]	The appeal is against conviction on the grounds:

[3]	The appellant, an Israeli national whose English is limited, arrived at Auckland International Airport on 28 July 2003 on a flight from Amsterdam via Korea. A search revealed what he admitted was a pipe for smoking cannabis. In the early afternoon he was released and left the baggage hall. He checked into Auckland City Centre Hotel on the corner of Albert and Wellesley Streets and paid a deposit for two nights accommodation. On the afternoon of 30 July he booked into the New President Hotel also in Wellesley Street until 1 August 2003.
[4]	At about midday on 30 July 2003 Callies, a German national, arrived at Auckland International Airport from Paris via Singapore having travelled to Paris by train from Amsterdam. A customs search revealed 61,700 Ecstasy tablets concealed in a compartment inside the suitcase. The street value of the tablets was between $3 m and $6 m. Callies was later convicted in relation to importing the controlled class B drug Ecstasy. He was sentenced to four and a half years imprisonment.
[5]	At his initial interview by a detective, Callies agreed to help the police and he was the principal witness for the Crown at the appellant’s trial. He said in evidence that he had met the appellant in India in June 2003 and that in Kasol, in the presence of the appellant, Callies and one Leron, another Israeli national, discussed bringing hashish from India to Milan in Italy. They later went to Delhi to a hotel nominated by Leron who said that there would be a suitcase ready in a couple of days. Callies said that Leron made an appointment for him to meet the appellant at a café in the centre of Delhi to pick up the suitcase. Callies said that the appellant arrived with a grey suitcase which he gave to Callies. Callies told the appellant to bring it to the hotel. The suitcase was identified as the one searched by customs when Callies entered New Zealand. Callies said that Leron had agreed to pay him US$10,000 for carrying the suitcase from Delhi to Milan.
[6]	Callies said that from Delhi he went by train to Mumbai and flew Swiss Air via Zurich to Milan arriving on 1 July. The appellant was waiting for him outside his hotel. The appellant removed the hashish from the suitcase, put it in Callies’ shoulder bag and carried it away. A fortnight later the appellant paid Callies €4,000. The appellant’s Navneet notebook records that on 15 July he received €5,000 and "I gave to a friend €4,000". Callies was told that he was to make a further run, to New Zealand, for which he would receive further money in Amsterdam.
[7]	In mid-July Callies left Milan, arriving in Amsterdam on 22 July. He telephoned the appellant and they met in his hotel room. The appellant gave him about €1,900 for an air ticket to New Zealand and instructed him to take an expensive airline such as British Airways which, unlike a cheap airline, was not suspicious. He was to be in New Zealand the following Tuesday, 29 July.
[8]	In Amsterdam the appellant gave Callies the same suitcase. Although Callies suspected that it contained Ecstasy, which usually comes from Holland, nothing was then said by the appellant on that score. The appellant instructed Callies, on arrival in New Zealand, to call Leron in India immediately and to go to the City Central Hotel. The appellant provided Callies with a Nokia cellphone for which he was to buy a SIM card in Auckland. Callies was expecting $10,000 for bringing the drugs into New Zealand.
[9]	Following his apprehension at Mangere on 30 July, Callies signed a consent form allowing the police to place a listening device on him. On arrival at the hotel, he telephoned Leron as instructed using a telephone which the police had tapped. Leron said "You take a... while... eh... you know." Callies replied "Takes a while and the bus from the airport and you know." Leron said "Everything good." Callies replied "Everything fine yeah." Leron said "You buy a phone and I call you..." Callies said "Okay, I have to get the SIM card and then I give you the number... then I ring you back."
[10]	The next morning at about 9.30 am the appellant called Callies and instructed him to meet the appellant. The transcript of the discussion records the appellant saying "Nobody can come here and... the money is not ready." Callies said "Oh man the money’s not ready." The appellant said "Ah ready and not ready something like this..." The appellant asked "How are you good. Yeah." Callies said "I want to go tomorrow I want I want I want my money." The appellant said "Mmm look... what’s going on with you in the why you late to..." Callies "Quite late." The appellant "You be. You need to come in ten o’clock." Callies "No, no, no my my my flight was a bit late..." The appellant "Now I must go to bank..." Callies "...Westpac". The appellant "There, there, everybody there think the Police ah find and take you, now you out and like you...". Callies said "Not my fault that I get, don’t get money soon." The appellant said "Ah it’s not because you don’t maybe no good okay but I tell you this not be like in eh Milan..." Callies said "Leron told me like that two days and I can go." The appellant said "...then why you come for one day two days then you go, this might a little suspicious." Callies "Yeah suspicious." The appellant "Suspicious. You understand."
[11]	The conversation on 31 July at 12.15 pm was recorded after the appellant’s arrival at room 708 at the New President Hotel, and was in Callies’ presence. The appellant asked "Where is the... We can see?" Callies replied "Sure. I have here other stuff. I took it already off my, my stuff because I thought you, you get the bag, so." The appellant replied "Oh. But you know what you know when why somebody come here... I think you... good, good." Callies said "So you also have to wait for Leron. How many times different is it?" The appellant said "I think seven hours...". Callies said "Sure. 6 o’clock in the morning. So what what’s the matter with Leron’s phone. With Leron’s phone why was an Indian answering." The appellant said "I don’t know, I tell you don’t call this number." Callies said "Yesterday I have to call this number." The appellant said "No." Callies said "Because there was no no no no answer on other phone." The appellant said "I tell you what you for now you with me you don’t need to call to Leron any more you know if ah, I don’t know."
[12]	At 3.26 pm there was recorded another telephone conversation between the appellant and Callies. The appellant asked Callies "Can you come..." Callies replied "Oh I heat my room and it’s so nice here so I." The appellant said "Ah please." Callies responded "Ah." The appellant said "Please come my room because if I drink beer and I don’t smoke one cigarette I you know... Just come." Callies replied "Yeah okay, I come soon..."
[13]	From 3.29 pm a further conversation with the appellant was recorded on Callies’ body microphone. The appellant said "Why you are you want?" Callies said "I want the stuff out of my room." The appellant said "I need to..." Callies said "You know, you know what it is actually." The appellant said "Yeah." Callies said "What?" The appellant said "Ah Ecstasy." Callies said "Ecstasy. And how much. Was was heavy must be a lot yeah." The appellant "I don’t know." Callies "Because." The appellant "I think, I think, I don’t rec I absolutely not but I think." Callies said "Because when I, when I checked in the airport the bag was 31 kg and you saw my stuff it’s not a lot." The appellant "Yeah." Callies "So how, how much is it how." The appellant "I don’t know..." Callies said "Ecstasy." The appellant said "You want Ecstasy..." The conversation was interrupted when the police entered the room and arrested the appellant and Callies.
[14]	The appellant’s contention is that it was Callies and not the appellant who was talking about Ecstasy; that there were gaps in the tapes and no solid evidence establishing the correctness of Callies’ account.
[15]	The appellant elected to give evidence and admitted meeting Callies and Leron in Kasol and later seeing Callies in Milan. He denied any discussion about or involvement with drugs. Although he went to Amsterdam he denied meeting Callies there. He admitted that when he got to Auckland he called Leron. He told him that Callies was in the country. They arranged to meet. He denied any connection with the suitcase.

[20]	He submitted that in this case the suitcase containing the drugs was in the custody of Callies not of the appellant. He submitted that at para [28] the Judge misdirected the jury by suggesting that the pen in the Judge’s home in Christchurch was in the Judge’s possession: that the jury would infer a direction that the appellant was in possession of the suitcase in Callies’ room. In oral submissions Mr Cooke was unable to sustain the challenge to the Judge’s summing up which we consider was admirably direct, concise, accurate and helpful.
[21]	The summing up concerned a contest between the Crown’s account that the appellant had supplied the suitcase containing the drugs to Callies in Amsterdam and was entitled to resume control of it from his courier at any time, and the defence case that the appellant had nothing to do with the suitcase and its contents which were entirely Callies’ affair. Para [28] was an expression of the legal result of accepting the Crown case, the denial of which by the defence was the subject of para [30].
[22]	A less experienced and confident judge might have chosen to give a more complex direction about the mental and physical elements of possession. But measured by the practical test of whether the jury received a clear and correct account of how they should approach their fact finding task in this case, the direction was exemplary, as in the end Mr Cooke was constrained to acknowledge.

[24]	In its terms it simply requires the Judge to consider whether the jury should be directed on the need for special caution.
[25]	The exact terms of the direction to be given by the Judge are a matter for the Judge’s discretion: R v K [1984] 1 NZLR 264 at 268. As observed by Lord Hailsham LC in DPP v Kilbourne [1973] AC 729 at 740:

[27]	When pressed for a submission as to what was omitted from or wrongly stated in the Judge’s direction, Mr Cooke was in the end unable to respond.
[28]	Mr Cooke then submitted that the Judge erred in dealing with the s 12C topic in relation to the following paragraph:

[29]	Mr Cooke submitted that the Judge failed to return to the topic of the need for caution in considering Callies’ evidence.
[30]	In fact the Judge did return to that topic in his summary of the cases of the parties. In relation to the Crown case he said:

[31]	He then recounted the evidence which the Crown submitted confirmed Callies’ veracity, including the coincidences of their travel patterns in India, Milan, Amsterdam and Auckland and entries in the appellant’s notebook.
[32]	Then at para [42] and following he summarised the defence case:

[36]	Mr Cooke submitted that by concluding the lies direction with the underlined passage the Judge should have gone on to issue an additional s 12C warning because the lies direction related only to the evidence of the appellant and not that of Callies.
[37]	We do not agree. The lies direction is in common form. It contained a slip – "it must affect our overall assessment" rather than "it may affect our overall assessment of his version of events". But the summing-up is to be viewed as a whole and in context. The Judge had directed the jury properly both as to Callies’ evidence and as to their function and that matters of fact were for them. The slip of the tongue in an oral summing up could not possibly have misled the jury so as to risk injustice. And indeed Mr Cooke did not so contend.
[38]	We agree with Mr Cooke’s submission that the close attention given to the alleged lies by the appellant required proper balance in directing about the evidence of Callies. But there was no lack of balance. The third ground fails.

[40]	Mr Cooke submitted that the Judge did not confine himself to giving a short answer to the question but went on in a passage commencing "But secondly..." to give a synopsis of what he described as the real issue in the case. Mr Cooke submitted that at that point, after a 24 hour retirement, it was incumbent on the Judge to repeat his s 12C direction in relation to Callies’ evidence and the direction relating to alleged lies by the appellant.
[41]	Implicit in the argument is either that the further direction lacked balance or that after a day’s retirement they required a reminder of the major themes in the summing up.
[42]	No authority was cited for the latter proposition which, if right, would require consideration in the case of any lengthy retirement of whether further direction was required and, if so, in what terms. The suggestion is wrong in principle. To sum up again in part would risk lack of balance, and to do so in full would be likely to irritate the jury as an unnecessary distraction from their task of working through to a verdict.
[43]	There remains the question whether there was lack of balance in the further direction. We are satisfied that the Judge’s intervention was appropriate and fair, responding substantially to the point that must have underlain the jury’s question.
[44]	The fourth ground also fails.