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The Queen v Shirinov [2006] NZCA 102 (25 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA385/05

THE QUEEN

v

RAFAEL SHIRINOV

Hearing: 17 May 2006

Court: O'Regan, Panckhurst and Potter JJ

Counsel: S N Hewson for Appellant
G J Burston for Crown

Judgment: 25 May 2006

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal against conviction and sentence is dismissed.

REASONS

(Given by Potter J)

TABLE OF CONTENTS

Introduction [1]
Background facts [4]
Conviction appeal [7]
Section 344A ruling [9]
Summing up [18]
Conclusion [42]
Sentence appeal [43]
Result [53]

Introduction

[1] The appellant Rafael Shirinov was convicted following trial by jury on one charge of possession for supply of a Class A drug, methamphetamine, six charges of receiving stolen property to a total value of $16,790 and one charge of possession of a restricted weapon, a stun gun. He was acquitted on one count of receiving a Blackberry telephone. He was sentenced to five years nine months imprisonment.
[2] Mr Shirinov appeals both conviction and sentence.
[3] He seeks leave to file the appeal out of time. Sentence was passed on 12 August 2005. The appeal was filed on 6 October 2005. No reasons were given for the late filing of the appeal but leave was not opposed by the Crown.

Background facts

[4] The Police executed a search warrant at the appellant’s apartment in Central Wellington on 20 October 2004. They found a number of items of stolen property including a large amount of jewellery, a digital camera, a hard drive for a computer, two computers, an expensive telephone set and a weapon, a sophisticated stun gun. In the pocket of the jacket worn by Mr Shirinov were found a number of "point" bags of methamphetamine packed in a tin. There were a total of 19 bags weighing 2.929 grams which had a street value of approximately $2,900. The methamphetamine was found in bags containing differing quantities, the bags having distinctive logos which corresponded to the particular weight of the methamphetamine in each bag. Found in Mr Shirinov’s pocket was the sum of $12,000 in cash, packaged into four bundles – two of $1,000 each and two of $5,000 each.
[5] In the apartment were located trappings of drug dealing, including a large supply of clear plastic bags, many of them "point" bags marked with identical logos to the bags containing methamphetamine found on the person of Mr Shirinov. Also found were electric scales and the stun gun.
[6] About a month later on 25 November 2004, Police executed a further search warrant, this time on a Mercedes Benz motor vehicle that Mr Shirinov had purchased on 19 November 2004. Two documents were found in that vehicle showing sums of money totalling $25,300 against a list of initials. Expert evidence was given at trial which supported the inference that these documents were in part "tick lists".

Conviction appeal

[7] The stated grounds of appeal are:

a) The Honourable trial Judge erred in admitting evidence of documents seized in a later search of the prisoner’s address;
b) The Honourable trial Judge in summing up the case to the jury erred in the following ways:

i) The summing up was unbalanced in favour of the Crown;
ii) Evidence was misquoted or unfairly put or referred to;
iii) Defence counsel’s address was not accurately summarised.

The combination of the above points made for a biased summing up.

[8] The appellant relies on s 385(1)(c) Crimes Act 1961 that on the stated grounds there has been a miscarriage of justice.

Section 344A ruling

[9] The ruling was given orally by Gendall J following a hearing on 11 July 2004, the day prior to the commencement of trial. The Judge ruled that the evidence arising from the search of the appellant’s Mercedes Benz, namely the "tick lists", was admissible. He stated that the question of admissibility turned on relevance. He distinguished between the issue of the weight or the reliability of the evidence, which was for the jury, and the issue of admissibility, which was for the Judge.
[10] He held that the location of this evidence about five weeks later, was not so remote as to be classed as irrelevant to the issue of the appellant’s purpose of possession a month earlier. He considered that if an item of circumstantial evidence happens to arise or be discovered later than the date of a charge (here the charge was possession for supply on 20 October 2004, the date of execution of the first search warrant), it may nevertheless be relevant and admissible if aimed at proving intent, purpose and motive as opposed, for example, to proving possession. He observed that a "tick list" was an item of evidence that an accused person may have whether before or after he was found in possession of methamphetamine, which indicates the trappings of a dealer in drugs. He accepted that there would come a time when a link of such trappings to a particular charge was so remote as to be irrelevant, but held that it was for the jury to assess in the circumstances of this case whether the finding of the "tick lists" (if that is what they were accepted to be) in the appellant’s car on 25 November 2004, assisted in deciding the purpose for which the accused possessed the Class A drugs found in his possession on 20 October 2004.
[11] Mr Hewson for the appellant submitted that the documents said to be in the possession of the appellant some five to six weeks after 20 October 2004 could have no real probative relevance in relation to the charge of possession for supply on 20 October 2004, even if the documents could be attributed to the appellant. He said that there was no proven link between the appellant and the two documents, for example, that they were in the appellant’s handwriting. The only link was the finding in his car, which he had purchased only five days earlier on 19 November 2004. He submitted that while the trial Judge was correct that relevance was the essential issue, there was nevertheless a balancing act to be performed to weigh the probative value of the evidence against its likely prejudicial effect. It was submitted that there was a risk that the jury would make the link in time between the finding of the "tick lists" and the other evidence found on 20 October 2004, and given the lack of evidence of any link between the "tick lists" and the evidence found on 20 October 2004, this was to invite the jury to speculate. Hence, it was submitted, there was a risk of illegitimate prejudice which outweighed the probative value of the documents.
[12] The Crown submitted that the Judge correctly categorised the issue as one of admissibility, with the weight and reliability to be accorded to the documents being matters for the jury. The Crown noted that in summing up, the Judge specifically directed the jury to the matters relevant to assessment of the weight and reliability to be attributed to this evidence.
[13] It appears that the argument about the risk of illegitimate prejudice was not raised before the trial Judge. Rather, Gendall J stated the appellant’s submission to be that the tick lists did not have "temporal" relevance to the charge that the appellant faced; that the evidence of the location of the "tick lists" was too remote and could not relate to the charge of possession on 20 October 2004.
[14] The Judge correctly determined that the issue of admissibility turned on relevance of the evidence. There can be no criticism of the approach of the trial Judge to the "temporal" issue. Another Judge may have viewed the intervening period of five weeks between the two searches as rendering the evidence too remote to be relevant. But a "tick list" is usually a living and evolving document and an interval of five weeks is not untoward given the nature of such a document.
[15] "Tick lists" (if the documents in question are accepted by the jury to be such), are always highly probative where possession of drugs for supply is charged, and are evidence prejudicial to the accused’s case. But when the evidence is relevant and therefore admissible, provided the jury is properly directed as to matters relevant to the assessment of weight and reliability, there can be no illegitimate prejudice.
[16] In summing up, Gendall J clearly put the defence position in relation to the documents. He said:

They may not, even if a "tick list", have any reference or bearing to the purpose or intent or aim of the accused five weeks later.

He put to the jury the defence contentions that the lists might not have been "tick lists"; that they were found in the car about five days after the appellant purchased it; that they were not finger printed; that they might well have been in the car when the appellant purchased it and have no relevance or implication to the appellant.

[17] We are satisfied that the "tick lists" were properly admitted to evidence and that the Judge fully and properly directed the jury as to matters of weight and reliability.

Summing up

[18] The defence case at trial as summarised in submissions for the appellant was that:

a) The appellant did not possess the drugs located at his apartment for the purposes of supply. Another person at the premises at the time of the search on 20 October 2004 (an Asian man) was in fact the supplier and the appellant was the purchaser, the other person being in law the possessor for the purpose of supply.
b) The appellant did not receive the jewellery specified "being reckless as to whether or not it had been stolen".
c) The appellant did not have possession of the restricted weapon but another person present at the time of the search of the appellant’s apartment on 20 October 2004 (the Asian man) in fact owned and possessed the restricted weapon.

[19] Mr Hewson submitted that the defence case was not put clearly and directly to the jury by the Judge in summing up. He submitted that matters going to the heart of the defence case were not mentioned. These were not identified in the written submissions for the appellant but in submissions before this Court Mr Hewson referred to certain matters, which he claimed were not fairly put by the trial Judge.
[20] The evidence that when the search was executed on 20 October 2004 it was the Asian man who had "loose cash" ($500) in his possession, that the "black bag with methamphetamine" found on the appellant was found separately and not with the other drugs packaged in a tin, and that the appellant had a pipe. It was said that this evidence gave rise to an inference that it was the Asian man who was the vendor of the drugs and the appellant who was the purchaser. Mr Hewson submitted that this evidence was never put directly to the jury but was dealt with by the Judge "in less than a charitable way" from the perspective of the defence case

[21] The Judge referred to this evidence at [48] of his summing up:

And Mr Hewson emphasised from his point of view evidence of Detective Dombroski where he said well, there was some dispute as to what was said in the officer’s notes, but not in evidence, but in the notes as to "black bag with meth in it". And Mr Hewson says well, Mr Dombroski accepted that may have been in his pocket, that’s the accused’s pocket, and Detective Dombroski may have put it in the tin. Mr Hewson submits that this might be a separate piece of methamphetamine used by the accused or heard that he may have been using it or may be it had been purchased by him from somebody else in the premises.

[22] The Judge then read to the jury the relevant portion of the evidence of Detective Dombroski:

Q. Now you’ve been asked questions about his notes. Before you detailed you had those items you record in a general sense that was located as you put it or write it "on the Russian" just above that entry located on the Russian?
A. Yes.
Q. Wad of cash?
A. Yes.
Q. Meth in silver tin?
A. Yes
Q. Meth pipe used?
A. Yes.
Q. Black bag with meth?
A. Yes.
Q. Syringe bag?
A. Yes.
Q. Black bag with meth. Can you give me the exhibit number for that item?
A. No I can’t sorry.
Q. Do you know if it’s photographed?
A. It could be one of the bags that was located in the tin but I haven’t detailed it in my notes.
Q. So it could have ended up going back to the tin?
A. Either that or being as part of the tin.
Q. The black bag that we know of are you able to record black silk purse?
A. Yes.

Q. You recorded it having two button studs and so forth?

A. Yes.
Q. Could that have contained a bag of meth as well?
A. I didn’t think so. May be I mistook it as a bag of meth and didn’t detail it till later.
Q. Or alternatively one big blackish bags with the Gold Skulls may have been on his person?
A. I don’t think so because the bags located in the tin were as they were.

[23] The Judge then continued:

So that’s the exchange that Mr Hewson was referring to. Mr Hewson says can you exclude the possibility beyond reasonable doubt that the man who is in the apartment, not the woman, may have had something to do with the methamphetamine found on the accused? Well, that’s a matter for you.

He returned to this aspect at [51]:

Mr Hewson in the end says well with all the other two present you can’t be sure that the methamphetamine, not the money, the methamphetamine found on the accused did not come from some other source such as the other gentleman.

[24] We consider the defence case as it related to this evidence, was fully and fairly put to the jury. The jury were clearly directed to the relevant part of the Detective’s evidence. While the Judge did not refer specifically to the "loose" cash found on the Asian man, evidence of the money found on both the appellant and the Asian man was before the jury. Mr Hewson presumably made submissions about this matter in his closing address. There is no requirement that the Judge direct on every detail of evidence in summing up.
[25] Counsel for the appellant referred to defence concerns about contamination of evidence. He identified concerns in relation to the silk purse found in the appellant’s jacket and in relation to a brass inlay container photographed containing rubber bands, it being alleged by the defence that the tangy rubber bands (which matched the rubber bands around the bundles of the notes found on the appellant, as shown in the photographs in evidence at trial) had been inserted by Police after the initial photographs of the container were taken. It was submitted that the evidence of the two bundles of notes of $50 denomination found on the appellant, was consistent with the money having been withdrawn from a bank which gave credence to the evidence of a Mr Focus called by the defence who claimed to have made a loan of a substantial sum of money to the appellant for the purchase of a car, but that contamination in the evidence in relation to the rubber bands created a risk that the jury could wrongly reject the explanation provided by Mr Focus as to why the appellant had this money. It was submitted that the jury were not adequately and fairly directed on the matter of contamination.
[26] In his summing up the Judge dealt at length with the chain of evidence and allegations of contamination. He said at [45]:

Mr Hewson relied particularly and strongly on what is called the "chain of custody" and said that this was a concept which might factor large. In essence he was saying that you cannot be sure that the chain of custody as to various exhibits was sufficiently tight as to enable you to rely on the exhibits. A chain of custody simply means this. When you are in Court and hearing a case you see the exhibits that are relevant to this case. There they are. You have got them. The Police evidence is those exhibits came, according to Detective Dombroski from items worn by the accused, from his office and two items, that is the Airway two line starter pack (that’s the two telephones) and the hard drive computer thingy which came from the lock-up. The officer said that is where they were found and they produced them here yesterday and the day before. And you have to be satisfied that between that time and now nothing has happened to them that has disturbed them, altered them, added to them, changed them and so forth. And Mr Hewson says well, there’s a risk of contamination and confusion and you’ll, if you think there is merit in that submission, look for the evidence as to that.

[27] The Judge then read to the jury a relevant extract from the evidence of Detective Domtroski:

Q. What did you do with the jacket from the point until you left it later?

A. It was bagged with all the other exhibits that were within the jacket. They were bagged and labelled and set aside for removal.
Q. So you found an exhibit right from the commencement of search you bagged and labelled each item?
A. Generally but some weren’t because there was a lot of exhibits removed for example from the storage area [that’s the storage cupboard] and they were simply removed en masse and from the spare bedroom and so forth.
Q. The black Cutler brand jacket exhibit 1 along with the items contained in it were all kept together in one bag?
A. No they were all separate. The Cutler brand jacket, the money, item 2 containing the meth it was all separated out into separate bags.

[28] The Judge put to the jury issues addressed by Mr Hewson about certain of the exhibits "removed en masse", and stated:

Mr Hewson properly says, look, just because there is a property record sheet or a Schedule of exhibits does not of itself necessarily prove its contents. Well, that’s a matter for you. But he says you must be careful as to the chain of handling of the exhibits and be wary of any risk of contamination of them.

[29] The issue of contamination of evidence as raised by the defence, was thus squarely put to the jury. The jury were correctly directed as to the importance of the chain of evidence and alerted to the nature of the defence submissions in relation to it. There was no obligation on the Judge specifically to refer to allegations of Police misconduct, particularly when it had not been put to the Police witness that they had somehow "fiddled" with the rubber bands in order to present them for photographic purposes in a manner that would be prejudicial to the appellant, and as to which the Police had provided a logical explanation, that the lid would have been removed from the container and the rubber bands arranged within the container in a way that the contents were visible for the purposes of the evidential photograph.

[30] Counsel was critical of the trial Judge’s summing up in several other respects. He objected to the repetition of the phrase "... that is entirely a matter for you", which he said the Judge stated five times. It was submitted that the effect of this phrase in relation to the appellant’s statement to the Police was "generally to undermine the voracity (sic) of the appellant’s statement". He also complained of the "tone and expression" adopted by the Judge. He submitted that the Judge’s summary of the Crown and defence cases was "unduly loaded to the elevation of the Crown case and the dismissal of the defence case" and that "clear support" is accorded to the Crown case while each point of the defence case "is to some extent undermined".

[31] We do not have access to defence counsel’s closing address in order to ascertain whether there is any or a proper foundation for the objections now raised by the appellant. However, we note that in response to the Judge’s question of counsel whether there was anything arising from his summing up, there was a quite lengthy discourse between Mr Hewson and the Judge. Mr Hewson asserted that the Judge misquoted him many times. Gendall J asked for reference to the relevant passage. Detailed discussion followed between Mr Hewson and the Judge but ultimately there was no need to recall the jury to clarify any matters.
[32] As to the appellant’s statement the Judge directed the jury at [33] as follows:

The accused did not make any formal written statement but made some oral comments to Detective Fabish. You will remember the detective’s evidence that when the accused said that he had had the computers for years. When asked for an explanation he said "lawyers can do their job". He said "I asked the person if it’s stolen or not cos if it’s stolen I don’t want it" and lastly he said to Detective Fabish "I don’t know what I’m going to say about the thing". Now what an accused says to the police are not of course sworn testimony, not given in the witness box but they are part of the material for you to consider. What you make of the truthfulness, accuracy and weight of those statements and comments is for you to decide. You may accept parts of what an accused says in those occasions just as parts of what a witness says in evidence and not accept other parts. That is entirely a matter for you.

[33] This direction was an entirely standard direction concerning an out-of-Court statement by an accused. In the following paragraph the Judge gave a conventional lies direction referring to the appellant’s statement to Detective Fabish that he had had the two computers for years, which the Crown said was a deliberate lie. Again the direction was in entirely conventional terms and concluded with the standard warning:

Well, those are matters for you to assess, but it is important that juries guard against any tendency to think that if an accused told a lie then he must be guilty of the offence for that reason alone.

[34] The Judge fairly put the appellant’s position in relation to the two computers when summarising the defence case. He said at [54]:

On the question of the accused’s explanation or statements relating to the two computers that they had no serial number on it and he had had them for a long time, Mr Hewson submits well, that shows the accused undertook, and he used the words, "due diligence" namely he had a close look at the computer. Therefore you can take it from that comment that there was no serial numbers of them, that he obtained them with honest intentions. Well that’s a matter of fact entirely for you.

[35] The Judge summarised the Crown case in [38]-[43] followed by the defence case in [44]-[56]. He covered in considerable detail defence contentions about the evidence including the chain of custody, the contention that the source of the drugs was "the other gentleman", the defence case as to the source of the jewellery located at the appellant’s apartment, that the Blackberry telephone could have been put there by the other man present (which possibility was presumably accepted by the jury by the not guilty verdict on Count 6), the appellant’s explanation as put by Mr Hewson in closing in relation to the digital camera located at the appellant’s premises, the evidence of where the stun gun was located and the defence contention that proximity of the gun to the Asian man could point to it having been his property and in his possession.
[36] We reject any suggestion that the trial Judge in summing up failed clearly and fairly to put the contentions of both the Crown and the defence. The evidence was extensive and the Judge gave a full summary to the jury. There is no requirement that the Judge reiterate the minutiae of counsels’ submissions to the jury: R v Dacombe & Jones CA276 & 277/99 15 December 1999 at [12].
[37] We can consider only the written version of the summing up from which conclusions as to "tone" cannot fairly be drawn, but the written transcript certainly does not indicate other than that the Judge was seeking to put fully and fairly to the jury both sides of the case. When there is extensive evidence, as in this case, it is unsurprising that the Judge should remind the jury as he summarises the evidence, that decisions about the evidence are entirely for them. No criticism can be levelled at the Judge for so doing.
[38] Mr Hewson further submitted that in dealing with the stun gun and the reverse onus of proof that applies:

... the Learned Trial Judge gave the very clear impression to the jury that the appellant did not satisfy the reverse onus burden placed upon him.

[39] Counsel referred to the acquittal of the appellant on Count 6 which charged the appellant with receiving the Blackberry phone. He said the verdict implied that the jury were in doubt that the phone was in the possession of the appellant rather than the Asian man. He submitted that the location of the stun gun, under the squab on the couch where the Asian man was sitting, must similarly have raised a doubt as to whether it was in the possession of the appellant.
[40] The Judge directed the jury at [55] as follows:

Finally, on the restricted weapon count Mr Hewson says he doesn’t dispute it’s a restricted weapon. You saw it and there’s no argument about it. And accepts that it’s in the possession of the accused or at his apartment and that the onus is on the accused to have satisfied you on the balance of probabilities as I have told you. And there is no evidence of course called to satisfy that onus or that task and there doesn’t have to be and I emphasise that. But Mr Hewson says well, there was evidence that this item was under the squab on the couch on which the Asian was sitting and you might conclude that it was the Asian. Well whether that discharges the onus or burden on the accused is entirely a matter for you.

[41] The possibility advanced by the defence was fairly put by the Judge. The stun gun was an item different in nature from the Blackberry phone. As Mr Burston submitted it was open to the jury to regard the stun gun as part of the drugs paraphernalia but regard the Blackberry phone as in a different category. The jury’s verdict simply implies they were satisfied that the gun was in the possession of the appellant and not satisfied on the balance of probabilities that the evidence established that it was not the appellant’s property and was in the possession of the Asian man. The Judge had previously comprehensively directed the jury as to the two different onuses. There can be no criticism of his summing up on this aspect.

Conclusion

[42] The appellant’s submissions in relation to the appeal against conviction are without merit. We are satisfied that there has been no miscarriage of justice. The appeal is dismissed.

Sentence appeal

[43] The appeal is on the usual ground that the sentence was manifestly excessive.
[44] It was submitted for the appellant that having regard to the guideline decision in R v Fatu CA415/04 18 November 2005, which was delivered after the sentencing in this case, the starting point adopted for the possession of methamphetamine for supply charge of four and a half years imprisonment was too high, and therefore the effective sentence on all charges of five years nine months imprisonment was manifestly excessive.
[45] Gendall J stated on sentencing that the evidence of the appellant’s drug dealing was overwhelming.
[46] The Judge referred to R v Wallace & Christie [1999] NZCA 92; (1999) 16 CRNZ 429 and to R v Arthur [2005] 3 NZLR 729. He determined that there was clearly a commercial element in the appellant’s drug offending which placed it in the second category of Arthur. He referred to R v McMullan HC AK CRI 2004-004-002977 24 September 2004 (starting point five years), and R v Rika HC ROT CRI 2004-463-0023 3 November 2004 (starting point four and a half years for possession for supply of 2.9 grams). He considered that in the case of the appellant a starting point of not less than four and a half years imprisonment was justified. He referred to the amount of cash and the number of point bags in the appellant’s possession as giving some indicator of the level of culpability.
[47] The Judge noted that there were no mitigating circumstances and serious aggravating features including the stun gun, the appellant’s lack of remorse and three previous drug-related convictions, although the Judge observed that they were relatively minor.
[48] He considered that sentences on a cumulative basis were warranted because the drug offending and the receiving convictions, which involved valuable items ($16,790), involved separate and discrete offending. On a cumulative basis he reached a total sentence of seven years being an aggregation of four and a half years for the possession for supply offence, 18 months for the receiving and 12 months for the stun gun offence.
[49] He considered that applying the totality principle that sentence would be disproportionately severe. He therefore reduced the sentence to a total of five years nine months imprisonment which he considered appropriate to reflect the totality of the appellant’s crimes. He imposed the sentence of five years nine months for the charge of possession for supply of methamphetamine to be served concurrently with 12 months imposed for unlawful possession of a weapon and 12 months for the receiving charges.
[50] The Crown accepted that in terms of sentencing bands this case would fit into Band 1 in Fatu being low level supply (less than 5 grams) with a starting point in the range of two to four years imprisonment. However, counsel submitted that given the amount and purity of the drug in this case and the seriously aggravating features a sentence in the range of five years nine months imprisonment was available to the sentencing Judge.
[51] We agree. The guideline judgment in Fatu was not, of course, available to the Judge on sentencing. He appropriately took into account the relevant sentencing authorities including, importantly, Arthur .
[52] It may have been preferable that in applying the totality principle, the Judge had approached each of the sentences separately in accordance with s 85(1) of the Sentencing Act 2002, but it is the overall sentence imposed which is important and in the circumstances of this offending, the sentence of five years nine months cannot be regarded as disproportionate or manifestly excessive.

Result

[53] Leave to appeal out of time is granted but the appeal against conviction and sentence is dismissed.

Solicitors:
Hewson & Co, Wellington for Appellant
Crown Law Office, Wellington

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[1]	The appellant Rafael Shirinov was convicted following trial by jury on one charge of possession for supply of a Class A drug, methamphetamine, six charges of receiving stolen property to a total value of $16,790 and one charge of possession of a restricted weapon, a stun gun. He was acquitted on one count of receiving a Blackberry telephone. He was sentenced to five years nine months imprisonment.
[2]	Mr Shirinov appeals both conviction and sentence.
[3]	He seeks leave to file the appeal out of time. Sentence was passed on 12 August 2005. The appeal was filed on 6 October 2005. No reasons were given for the late filing of the appeal but leave was not opposed by the Crown.

[4]	The Police executed a search warrant at the appellant’s apartment in Central Wellington on 20 October 2004. They found a number of items of stolen property including a large amount of jewellery, a digital camera, a hard drive for a computer, two computers, an expensive telephone set and a weapon, a sophisticated stun gun. In the pocket of the jacket worn by Mr Shirinov were found a number of "point" bags of methamphetamine packed in a tin. There were a total of 19 bags weighing 2.929 grams which had a street value of approximately $2,900. The methamphetamine was found in bags containing differing quantities, the bags having distinctive logos which corresponded to the particular weight of the methamphetamine in each bag. Found in Mr Shirinov’s pocket was the sum of $12,000 in cash, packaged into four bundles – two of $1,000 each and two of $5,000 each.
[5]	In the apartment were located trappings of drug dealing, including a large supply of clear plastic bags, many of them "point" bags marked with identical logos to the bags containing methamphetamine found on the person of Mr Shirinov. Also found were electric scales and the stun gun.
[6]	About a month later on 25 November 2004, Police executed a further search warrant, this time on a Mercedes Benz motor vehicle that Mr Shirinov had purchased on 19 November 2004. Two documents were found in that vehicle showing sums of money totalling $25,300 against a list of initials. Expert evidence was given at trial which supported the inference that these documents were in part "tick lists".

[9]	The ruling was given orally by Gendall J following a hearing on 11 July 2004, the day prior to the commencement of trial. The Judge ruled that the evidence arising from the search of the appellant’s Mercedes Benz, namely the "tick lists", was admissible. He stated that the question of admissibility turned on relevance. He distinguished between the issue of the weight or the reliability of the evidence, which was for the jury, and the issue of admissibility, which was for the Judge.
[10]	He held that the location of this evidence about five weeks later, was not so remote as to be classed as irrelevant to the issue of the appellant’s purpose of possession a month earlier. He considered that if an item of circumstantial evidence happens to arise or be discovered later than the date of a charge (here the charge was possession for supply on 20 October 2004, the date of execution of the first search warrant), it may nevertheless be relevant and admissible if aimed at proving intent, purpose and motive as opposed, for example, to proving possession. He observed that a "tick list" was an item of evidence that an accused person may have whether before or after he was found in possession of methamphetamine, which indicates the trappings of a dealer in drugs. He accepted that there would come a time when a link of such trappings to a particular charge was so remote as to be irrelevant, but held that it was for the jury to assess in the circumstances of this case whether the finding of the "tick lists" (if that is what they were accepted to be) in the appellant’s car on 25 November 2004, assisted in deciding the purpose for which the accused possessed the Class A drugs found in his possession on 20 October 2004.
[11]	Mr Hewson for the appellant submitted that the documents said to be in the possession of the appellant some five to six weeks after 20 October 2004 could have no real probative relevance in relation to the charge of possession for supply on 20 October 2004, even if the documents could be attributed to the appellant. He said that there was no proven link between the appellant and the two documents, for example, that they were in the appellant’s handwriting. The only link was the finding in his car, which he had purchased only five days earlier on 19 November 2004. He submitted that while the trial Judge was correct that relevance was the essential issue, there was nevertheless a balancing act to be performed to weigh the probative value of the evidence against its likely prejudicial effect. It was submitted that there was a risk that the jury would make the link in time between the finding of the "tick lists" and the other evidence found on 20 October 2004, and given the lack of evidence of any link between the "tick lists" and the evidence found on 20 October 2004, this was to invite the jury to speculate. Hence, it was submitted, there was a risk of illegitimate prejudice which outweighed the probative value of the documents.
[12]	The Crown submitted that the Judge correctly categorised the issue as one of admissibility, with the weight and reliability to be accorded to the documents being matters for the jury. The Crown noted that in summing up, the Judge specifically directed the jury to the matters relevant to assessment of the weight and reliability to be attributed to this evidence.
[13]	It appears that the argument about the risk of illegitimate prejudice was not raised before the trial Judge. Rather, Gendall J stated the appellant’s submission to be that the tick lists did not have "temporal" relevance to the charge that the appellant faced; that the evidence of the location of the "tick lists" was too remote and could not relate to the charge of possession on 20 October 2004.
[14]	The Judge correctly determined that the issue of admissibility turned on relevance of the evidence. There can be no criticism of the approach of the trial Judge to the "temporal" issue. Another Judge may have viewed the intervening period of five weeks between the two searches as rendering the evidence too remote to be relevant. But a "tick list" is usually a living and evolving document and an interval of five weeks is not untoward given the nature of such a document.
[15]	"Tick lists" (if the documents in question are accepted by the jury to be such), are always highly probative where possession of drugs for supply is charged, and are evidence prejudicial to the accused’s case. But when the evidence is relevant and therefore admissible, provided the jury is properly directed as to matters relevant to the assessment of weight and reliability, there can be no illegitimate prejudice.
[16]	In summing up, Gendall J clearly put the defence position in relation to the documents. He said:

[24]	We consider the defence case as it related to this evidence, was fully and fairly put to the jury. The jury were clearly directed to the relevant part of the Detective’s evidence. While the Judge did not refer specifically to the "loose" cash found on the Asian man, evidence of the money found on both the appellant and the Asian man was before the jury. Mr Hewson presumably made submissions about this matter in his closing address. There is no requirement that the Judge direct on every detail of evidence in summing up.
[25]	Counsel for the appellant referred to defence concerns about contamination of evidence. He identified concerns in relation to the silk purse found in the appellant’s jacket and in relation to a brass inlay container photographed containing rubber bands, it being alleged by the defence that the tangy rubber bands (which matched the rubber bands around the bundles of the notes found on the appellant, as shown in the photographs in evidence at trial) had been inserted by Police after the initial photographs of the container were taken. It was submitted that the evidence of the two bundles of notes of $50 denomination found on the appellant, was consistent with the money having been withdrawn from a bank which gave credence to the evidence of a Mr Focus called by the defence who claimed to have made a loan of a substantial sum of money to the appellant for the purchase of a car, but that contamination in the evidence in relation to the rubber bands created a risk that the jury could wrongly reject the explanation provided by Mr Focus as to why the appellant had this money. It was submitted that the jury were not adequately and fairly directed on the matter of contamination.
[26]	In his summing up the Judge dealt at length with the chain of evidence and allegations of contamination. He said at [45]:

[35]	The Judge summarised the Crown case in [38]-[43] followed by the defence case in [44]-[56]. He covered in considerable detail defence contentions about the evidence including the chain of custody, the contention that the source of the drugs was "the other gentleman", the defence case as to the source of the jewellery located at the appellant’s apartment, that the Blackberry telephone could have been put there by the other man present (which possibility was presumably accepted by the jury by the not guilty verdict on Count 6), the appellant’s explanation as put by Mr Hewson in closing in relation to the digital camera located at the appellant’s premises, the evidence of where the stun gun was located and the defence contention that proximity of the gun to the Asian man could point to it having been his property and in his possession.
[36]	We reject any suggestion that the trial Judge in summing up failed clearly and fairly to put the contentions of both the Crown and the defence. The evidence was extensive and the Judge gave a full summary to the jury. There is no requirement that the Judge reiterate the minutiae of counsels’ submissions to the jury: R v Dacombe & Jones CA276 & 277/99 15 December 1999 at [12].
[37]	We can consider only the written version of the summing up from which conclusions as to "tone" cannot fairly be drawn, but the written transcript certainly does not indicate other than that the Judge was seeking to put fully and fairly to the jury both sides of the case. When there is extensive evidence, as in this case, it is unsurprising that the Judge should remind the jury as he summarises the evidence, that decisions about the evidence are entirely for them. No criticism can be levelled at the Judge for so doing.
[38]	Mr Hewson further submitted that in dealing with the stun gun and the reverse onus of proof that applies:

[43]	The appeal is on the usual ground that the sentence was manifestly excessive.
[44]	It was submitted for the appellant that having regard to the guideline decision in R v Fatu CA415/04 18 November 2005, which was delivered after the sentencing in this case, the starting point adopted for the possession of methamphetamine for supply charge of four and a half years imprisonment was too high, and therefore the effective sentence on all charges of five years nine months imprisonment was manifestly excessive.
[45]	Gendall J stated on sentencing that the evidence of the appellant’s drug dealing was overwhelming.
[46]	The Judge referred to R v Wallace & Christie [1999] NZCA 92; (1999) 16 CRNZ 429 and to R v Arthur [2005] 3 NZLR 729. He determined that there was clearly a commercial element in the appellant’s drug offending which placed it in the second category of Arthur. He referred to R v McMullan HC AK CRI 2004-004-002977 24 September 2004 (starting point five years), and R v Rika HC ROT CRI 2004-463-0023 3 November 2004 (starting point four and a half years for possession for supply of 2.9 grams). He considered that in the case of the appellant a starting point of not less than four and a half years imprisonment was justified. He referred to the amount of cash and the number of point bags in the appellant’s possession as giving some indicator of the level of culpability.
[47]	The Judge noted that there were no mitigating circumstances and serious aggravating features including the stun gun, the appellant’s lack of remorse and three previous drug-related convictions, although the Judge observed that they were relatively minor.
[48]	He considered that sentences on a cumulative basis were warranted because the drug offending and the receiving convictions, which involved valuable items ($16,790), involved separate and discrete offending. On a cumulative basis he reached a total sentence of seven years being an aggregation of four and a half years for the possession for supply offence, 18 months for the receiving and 12 months for the stun gun offence.
[49]	He considered that applying the totality principle that sentence would be disproportionately severe. He therefore reduced the sentence to a total of five years nine months imprisonment which he considered appropriate to reflect the totality of the appellant’s crimes. He imposed the sentence of five years nine months for the charge of possession for supply of methamphetamine to be served concurrently with 12 months imposed for unlawful possession of a weapon and 12 months for the receiving charges.
[50]	The Crown accepted that in terms of sentencing bands this case would fit into Band 1 in Fatu being low level supply (less than 5 grams) with a starting point in the range of two to four years imprisonment. However, counsel submitted that given the amount and purity of the drug in this case and the seriously aggravating features a sentence in the range of five years nine months imprisonment was available to the sentencing Judge.
[51]	We agree. The guideline judgment in Fatu was not, of course, available to the Judge on sentencing. He appropriately took into account the relevant sentencing authorities including, importantly, Arthur .
[52]	It may have been preferable that in applying the totality principle, the Judge had approached each of the sentences separately in accordance with s 85(1) of the Sentencing Act 2002, but it is the overall sentence imposed which is important and in the circumstances of this offending, the sentence of five years nine months cannot be regarded as disproportionate or manifestly excessive.