McSweeney v R [2012] NZCA 90 (14 March 2012)

Last Updated: 22 March 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA656/2010 [2012] NZCA 90

BETWEEN SARA LEE MCSWEENEY Appellant

AND THE QUEEN Respondent

Hearing: 13 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: R J Stevens for Appellant G J Burston and V C Brewer for Respondent

Judgment: 14 March 2012 at 10 a.m.

JUDGMENT OF THE COURT

The appeal against conviction and the imposition of a minimum period of imprisonment of four years is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] Following a jury trial before Gendall J, the appellant, Ms McSweeney, was convicted on five counts of importing a Class A controlled drug (methamphetamine) into New Zealand. The Judge sentenced her to eight years imprisonment, with a minimum period of imprisonment (MPI) of four years.[1] She now appeals against her convictions and the imposition of the MPI.

Background

[2] The appellant’s convictions arose out of her alleged participation in a drug importation operation organised and operated by inmates in Rimutaka Prison. A Thai prisoner, Mr Sungsuwan, arranged for methamphetamine to be imported from Thailand through contacts he had in that country. Three syndicates, each made up of Rimutaka Prison inmates and their associates, were involved. A contact outside prison (X), who gave evidence for the Crown, made arrangements with syndicate members who were not prison inmates for the provision of addresses for delivery of the drugs and for payment. The Crown alleged that the appellant was one of these contacts, on behalf of a syndicate involving, among others, Mr Wilkie, who is an inmate at Rimutaka Prison and is the appellant’s former partner and the father of her child, and Mr Sneller, a convicted drug dealer who was the appellant’s partner at the time.
[3] The Crown case was that Mr Wilkie placed orders with Mr Sungsuwan in prison and then arranged for the appellant to meet X to arrange payment and to give her the addresses to which the packages of methamphetamine were to be sent. There was evidence that the appellant visited Mr Wilkie in prison and that they were also in regular telephone contact over the relevant period. The Crown alleged that the appellant met X on seven occasions and each time handed her bags of varying descriptions which contained cash and addresses. All of the addresses in the bags were connected to the appellant in some way, two being her residence at the time. The Crown led expert evidence that the handwriting on one of the pieces of paper recording an address for delivery was that of the appellant.
[4] Mr Wilkie and the appellant were tried together. Both gave evidence. The appellant admitted that she had met X on five occasions and handed her the bags as alleged, but claimed that she was unaware of their contents. She said that she had met with X and given her the bags at Mr Sneller’s request, believing them to contain contraband items such as cigarettes to be smuggled into Rimutaka Prison. She said she was an innocent pawn of Mr Sneller and denied that Mr Wilkie had any involvement. Plainly the jury rejected her account.

Conviction appeal

[5] Mr Stevens for the appellant advanced three grounds in support of the conviction appeal. He argued that Gendall J:

(a) gave a summing up which lacked balance;

(b) failed to put the defence case properly; and

(c) misdirected the jury in relation to wilful blindness.

[6] Mr Stevens dealt with the first two grounds of appeal together, as they are interlinked. We shall adopt the same course.

Balance of summing up

[7] Mr Stevens submitted that the summing up lacked balance principally because the Judge, having given a brief summary of the defence case, purported to address both the Crown and the defence cases in the context of analysing 13 strands of circumstantial evidence which he had identified. In respect of each strand, Mr Stevens says, the Judge gave a full explanation of the Crown’s contentions but only a brief explanation of the defence’s response, thus emphasising the Crown’s case and failing to put the defence case adequately.
[8] Moreover, Mr Stevens submitted that the Judge omitted to mention one of the cornerstones of the defence case. That cornerstone was the fact that some of the packages, which were sent to addresses that the appellant was alleged to have supplied, were incorrectly addressed. For example, a package that the Crown alleged was to be sent to the address of the appellant’s brother at 61 Hutt Road was addressed to 61 Old Hutt Road. The appellant’s argument to the jury was that it was inconceivable that she would have made such errors if she had provided the addresses. The existence of the errors, it was argued, showed that the appellant could not have provided the addresses.
[9] Before we deal with these contentions, we should place the summing up in context. The trial took approximately five weeks. The Crown’s closing address took almost one and a half days and ran to 92 pages of transcript. The Crown’s case against the appellant was largely circumstantial. In his closing the Crown Solicitor, Mr Burston, outlined 26 points, grouped under eight topics, which he submitted established the appellant’s guilt:

(a) The first topic was the appellant’s relationships with Messrs Wilkie and Sneller and with methamphetamine (she was a methamphetamine user).

(b) The second topic was the appellant’s connections with the addresses to which the packages of drugs were sent, including that a note recording the address to which the first package was sent was in her handwriting and the final two packages were sent to the address where she was living.

(c) The third topic was the appellant’s knowledge of X, including the fact that she had X’s cellphone number stored on her telephone.

(d) The fourth topic was the circumstances surrounding the final delivery. That was delayed because the package was intercepted and was the subject of a controlled delivery. The Crown alleged that the appellant became suspicious as a consequence of the delay and refused to accept delivery of the package. Immediately after she sent a text to Mr Wilkie and started using a new cellphone number.

(e) The fifth topic was the appellant’s meetings with X.

(f) The sixth topic was the money in the bags which the appellant handed to X. On two occasions the cash (in one instance, $35,000) was in open topped shopping bags, albeit with clothes on top.

(g) The seventh topic was clothing. One of the drug packages from Thailand included some female clothing. The appellant gave this to X. This, the Crown argued, was inconsistent with the appellant’s evidence that she believed she was handing over clothes for delivery to the prison and supported an inference that the appellant had opened the package or knew that the clothing had come from the package.

(h) The final point was the appellant’s cellphone usage. She regularly changed and discarded SIM cards and telephone handsets, which was consistent with drug dealing.

[10] The closing on behalf of Mr Wilkie followed the Crown’s closing and ran to 47 pages of transcript. After this, Mr Stevens closed for the appellant. His closing took almost a day and occupied 87 pages of transcript. In it he first attempted to answer the 26 points relied upon by the Crown, then considered the evidence in relation to the individual counts against the appellant and, finally, referred to eight points which he said showed that the appellant was an innocent pawn who was used by Mr Sneller. In particular, Mr Stevens said that Mr Sneller was a seasoned drug dealer who took great care to insulate himself from direct participation in the drug dealing. If the appellant had been Mr Sneller’s partner in crime, he would have ensured that (a) she used the same protections as he did, for example, giving a false name and address when purchasing cellphones; (b) she did not contact X using the same cellphone as she used to contact her family and friends; (c) she did not keep a note of X’s cellphone numbers; and (d) she met X in discreet locations and used nondescript vehicles. Mr Stevens said that Mr Sneller kept the appellant in the dark about what she was involved in so that she did not become nervous and because he did not want to share the profits of his activities with her.
[11] In total, the closings took about three days. Gendall J then summed up for around three hours. There are several features of the summing up that are noteworthy for present purposes:

(a) The Judge noted at the outset that he did not intend to spend 14 hours regurgitating what they had heard from experienced counsel.

(b) When he discussed circumstantial evidence and the drawing of inferences, the Judge gave as an example the different inferences that the Crown and the defence invited the jury to draw from the circumstances surrounding the attempted delivery of the last package, which the appellant refused to accept.

(c) When discussing the position of Mr Sneller, he noted the appellant’s contention that she was his innocent pawn, as he did on a number of other occasions.

(d) The Judge gave a brief overview of the prosecution and defence cases before going on to discuss the circumstantial evidence. He said that the essence of the appellant’s case was that although she had communicated with X by telephone and text messages, had met X on five occasions and had given X the bags, she did not know that the bags contained money and the addresses to which drugs were to be sent. Her continuing contact with Mr Wilkie while he was in prison arose from the fact that he was the father of her child and she still had feelings for him.

(e) The Judge identified 13 strands of circumstantial evidence and, having set them out, went through each in turn, summarising first the Crown’s contentions and then those of the defence. It is here in particular that Mr Stevens argued that the summing up lacked balance.

[12] Although Mr Stevens did not raise his concern with the Judge at the conclusion of the summing up, counsel for Mr Wilkie, Mr Antunovic, did express a similar concern. The Judge recalled the jury to deal with several matters. He dealt with Mr Antunovic’s concern in the following way:

Secondly, and I just want to emphasise to you, that the defence submissions, amongst many others, were that there was no consistent pattern in respect of the five packages, especially the first two which you would expect if there had been the type of operation that the Crown says was going on involving Mr Wilkie and Ms McSweeney and that pattern was not there when you would expect it to be.

Thirdly, my summing up took about three hours and I did not obviously cover everything that counsel submitted to you in their addresses, defence addresses taking seven and three-quarter hours on my assessment and that is for obvious reasons. But you will bear in mind those matters emphasised to you by defence counsel in their closing addresses. All of those matters which they rely upon and which you accept, you will consider them before you reject them. I put it that way. Thank you.

[13] This Court considered the law concerning a judge’s obligation to put the defence case when summing up in R v Shipton.[2] The Court stated the essential principle as follows:[3]

The underlying principle is that it is the absolute duty of a trial Judge to identify and adequately remind the jury of the defence case in relation to each defendant. It follows that a failure to refer in the summing up to a central line of defence that has been placed before the jury will generally result in the conviction being set aside, and a new trial ordered.

The Court then noted that the difficulty in most cases where this ground of appeal is advanced is in determining “what is required in the fact-dependent circumstances of each case”.[4] The Court went on to say:

[36] In R v Ryan [1973] 2 NZLR 611 at p 614 Richmond J cited with approval the remarks of Lord Goddard CJ in R v Clayton-Wright (1948) 33 Cr App R 22 at p 29:

“The duty of the Judge in any criminal trial, or, for the matter of that, in any civil trial, is adequately and properly performed if he gives the jury an adequate direction on the law, an adequate direction upon the regard they are to have to particular evidence on such matters as accomplices . . . and if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else.” (Emphasis added.)

[37] That passage correctly comprehends that there are limits on a Judge’s duty to put the defence case before the jury. The Judge is absolutely required to see that the nature of the defence is squarely put through his office by summarising the nature of the defence and the evidence. The Judge is not, however, required to repeat defence counsel’s arguments, nor to endeavour to “top up” a weak defence case by setting out inconsistencies or matters of that kind.

[14] Within these constraints, there is a wide discretion as to the level of detail into which the Judge descends.[5] In Leonard v R the Court said of cases involving circumstantial evidence:[6]

... the Judge followed the still common practice of simply summarising the prosecutor’s final address and then the defence counsel’s final address. While that practice at least ensures both sides are put (or, more accurately, reput), it is often not particularly helpful to a jury. Counsel’s addresses often pass like ships in the night. Counsel frequently paint pictures – indicating guilt or innocence – at fairly high levels of generality. Inconvenient evidence is sidestepped. Circumstantial cases, however, frequently require detailed analysis, which only the Judge can provide for the jury. It would have been more helpful for the jury if the Judge had taken the five main strands of the Crown case and set out the evidence in respect of each strand. The jury needed the Judge’s assistance in marshalling the evidence so that the strength of each strand of the Crown case could be more accurately analysed.

[15] Clearly Gendall J attempted to follow the injunction in Leonard. He identified what he considered to be the critical strands of circumstantial evidence in the Crown case and went through them in turn, summarising the Crown and defence contentions albeit not in great detail. For example, in relation to a strand concerning the addresses in the bags, the Judge noted some of the specific addresses and then said:[7]

The Crown’s case is that those addresses could not have been provided without any knowledge on the part of Ms McSweeney or Mr Wilkie, they all being associates of Ms McSweeney and some of Mr Sneller and they provided the safe haven to which packages addressed to fictitious persons could be sent. The Crown case does not depend on Ms McSweeney actually knowing the precise address to which any individual package would be sent because the primary importer Mr Sneller may have arranged those. But she must know that the money was being given to [X] so that methamphetamine could be sent to New Zealand addresses and of course, her evidence was that she wrote out [a particular address] because she was told to do so by Mr Sneller.

The defence position as I have said, for Mr Wilkie is that he knew nothing about those things and had nothing to do with it and that you should accept Ms McSweeney’s evidence or at least have a reasonable doubt as to the truth of it and that the addresses were all addresses which Mr Sneller had some connection with and which he could have provided and the defence case is did provide, without any knowledge on the part of Ms McSweeney.

The Judge did not go on to summarise the evidence that Mr Stevens pointed to in support of Ms McSweeney’s contention that she did not know that the bags contained addresses and money related to drug dealing, in particular the errors in the addresses.

[16] Ultimately, this is question of how much detail the Judge should have gone into in outlining the defence case. In identifying the 13 strands of circumstantial evidence, the Judge provided some detail of the Crown’s case, then stated the defence response. He did not, we accept, give as much detail in every instance as he had of the Crown’s position, although to some extent this was inevitable as the Crown led most of the evidence and carried the burden of proof.[8]
[17] We do not accept, however, that the Judge’s summing up was unbalanced or that, realistically, he could have given much more detail than he did given the nature of the case and the scope of counsel’s arguments. The appellant claimed that she had been duped by Mr Sneller. She thought she was assisting in moving contraband into prison and did not realise that she was involved in a drug dealing operation. The Judge emphasised that on numerous occasions throughout the summing up, in greater or lesser detail depending on the context. Ultimately, the jury had to determine whether they believed the appellant, or at least whether she had raised a reasonable doubt in their minds, and we have no doubt that the jury understood this from the Judge’s summing up.
[18] As to the so-called “cornerstone” of the defence case – that is, the inaccuracies in the addresses – the Crown case did not, as the Judge noted, depend on the jury accepting that the appellant had supplied every address. The Crown simply argued that she had supplied one as it was in her hand-writing. Mr Sneller, as the primary importer, may have arranged the others (which were associated with the appellant to a greater or lesser extent even though she may not have supplied them). Accordingly, we do not consider that the Judge’s failure to mention the inaccuracies in the addresses gave rise to the possibility of a miscarriage of justice.

Wilful blindness

[19] The background to Mr Stevens’ submission that the Judge misdirected the jury on the question of wilful blindness is as follows. Although the Crown alleged that Mr Wilkie was a member of the syndicate, the case against the appellant did not depend on a finding that he was involved. The Crown considered that it would be more difficult to prove direct knowledge of the drug importation on the part of the appellant if the jury accepted that Mr Wilkie was not a member of the syndicate and that the importations had been arranged by Mr Sneller through other contacts he had in the prison. Accordingly, in addition to actual knowledge, the Crown alleged wilful blindness, based on the appellant’s knowledge that she was handing over bags containing substantial sums of money and addresses to X, a Thai woman, at the request of Mr Sneller, whom she knew to be a drug dealer.
[20] The Judge dealt with this in the summing up as follows:

[66] To import into New Zealand involves bringing into New Zealand drugs. The Crown has to prove beyond reasonable doubt that something is brought into New Zealand. As I have said, actions following the end of the importation cannot themselves be the basis for liability. Importation ends in this case when the drugs become available to the addressee. So the Crown must prove beyond reasonable doubt:

(1) something was brought into New Zealand. There is no real contest about that, even though there is no direct evidence of what was contained in four of the packages, although there is in respect of the last package, because the first four were not intercepted. Somebody got the benefit of them.

(2) that that something that was brought in was a controlled drug and I can tell you that methamphetamine is a Class A controlled drug.

(3) that the accused knew that the something that was being imported was a controlled drug and intended it to be brought into New Zealand, or was wilfully blind as to what she or he was assisting.

You have heard the Crown refer to “wilful blindness” and to be guilty as a party of importing controlled drugs you have got to either:

(a) knowingly be concerned with and helping the importation of a controlled drug into New Zealand; or
(b) as the Crown says be wilfully blind to what he or she was doing.

That simply means it will suffice if the Crown can prove beyond reasonable doubt that an accused had suspicions aroused as to what, in Ms McSweeney’s case, she was carrying, but deliberately refrained from making inquiries or confirming her suspicion because she wanted to remain in ignorance. The law is if that is proved, the law presumes knowledge on the part of the accused and the fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry.

Now that wilful blindness concept usually applies where the person is in fact carrying the drug, importing it themselves but wilfully blind as to what they were doing. So Mr Stevens submits that the wilful blindness concept could be put to one side because in Ms McSweeney’s case, for example, if she knew that she was delivering money for the purpose of drug importation then [she] has the direct knowledge and you may think that that is the proper way to look at it. So whilst the Crown says well, there could be wilful blindness, it has to be wilful blindness that relates to what you are carrying and in her case, the Crown’s position is, was money and addresses. And if it is proved beyond reasonable doubt that that is the case then the Crown says she had that direct knowledge. So the key to her involvement on the Crown case is that she was delivering money and addresses to [X] for the purpose of assisting in the importation of a controlled drug, to be paid for by the cash deliveries and the drug was to be delivered to addresses in New Zealand.

(Emphasis added.)

[21] There was an adjournment shortly after. Counsel raised with the Judge his direction on wilful blindness. The following exchange occurred.

MR BURSTON:

Sir, wilful blindness. My learned friend Mr Stevens might just advance his position on that very briefly.

MR STEVENS:

We have just had a discussion your Honour. I don’t think certainly intentionally, but your Honour put it to the jury that essentially that the Crown’s position was that the accused McSweeney was wilfully blind as to what she was carrying and in fact the Crown’s position as I understand it is that she knew that she had money in the bag. The wilful blindness –

COURT:

– relates to the –

MR STEVENS:

– as to what – so she knew that there was money in the bag and she either knew the money was to pay for drugs or she was wilfully blind as to what the money was to pay for. That’s my understanding of the Crown’s position.

MR BURSTON:

It’s even further than that. The Crown accepts that it has to prove Ms McSweeney knew what was in the bags – money and addresses. And the knowledge of wilful blindness must relate to the importation of drugs. So she either had to know that the money was for the importation of drugs in the packages or to have her suspicions aroused that it was for the importation of drugs and deliberately chose not to make further inquiries.

MR STEVENS:

Thank you.

COURT:

You want it left on that basis?

MR BURSTON:

Yes.

COURT:

All right, will do so. Mr Stevens? That’s what the Crown wants.

MR STEVENS:

How my learned friend has put it Sir puts it very succinctly thank you.

[22] The jury then returned and the Judge said:

[70] Thank you Madam Foreman, ladies and gentlemen. I just want to correct something which I already referred to about the knowledge or intention necessary to prove in respect of Ms McSweeney. This is knowing and intending that she was aiding and assisting in the importation. If she knew that what she was providing in the bag was moneys and addresses for the importation of methamphetamine, then that is direct knowledge. But further, if she knew of money and addresses she was wilfully blind as to whether it related to the importation of Class A drug because her suspicions were aroused but she deliberately chose not to inquire. So that is the second concept of wilful blindness.

(Emphasis added.)

[23] Mr Stevens submitted that the Judge was clearly wrong in his initial direction on wilful blindness and did not go far enough when he redirected the jury. He submitted that the jury might have thought that the Judge was directing them that they could find the appellant guilty as a party to the importations even though she did not know what was in the bags but was suspicious as to their contents and deliberately chose not to enquire in order to avoid discovering the truth.
[24] Mr Burston, while accepting that the Judge’s initial direction was potentially ambiguous, submitted that it was not erroneous when considered in the context of the summing up as a whole. In any event, the redirection was an accurate statement of the position. Finally, Mr Burston submitted that the direction on wilful blindness was not material as the jury found that Mr Wilkie was involved in the syndicate, wilful blindness being very much the Crown’s fall-back position.
[25] We accept that the Judge’s initial direction to the jury on wilful blindness was capable of misleading the jury. The Crown alleged that the appellant knew that the bags contained money and addresses and that she either knew their purpose or was wilfully blind as to that. The Judge’s initial direction might have led the jury to believe that the Crown was relying on wilful blindness in respect of the contents of the bags rather than simply in respect of the use to which the known contents were to be put.
[26] However, the redirection, while it might have been put rather more clearly, did address the problem because it indicated that the jury had to be satisfied that the appellant had actual knowledge of the contents of the bag before any issue of wilful blindness arose. Moreover, the appellant ran her defence on the basis that neither she nor Mr Wilkie was involved in the drug operation. Once the jury accepted that Mr Wilkie was a member of the syndicate, the appellant faced a difficult task on the evidence in attempting to persuade the jury that she did not know what was in the bags, or that at least there was a reasonable doubt about her knowledge. While it did not automatically follow that she must have known what was in the bags, the inference that she knew was almost irresistible given the factors relied on by the Crown (such as her close relationship with Mr Wilkie, the timing of the communications between them, the fact that she used methamphetamine herself from time to time, the addresses and her phone usage). Once the jury considered that she did have knowledge of the bags’ contents, a guilty verdict was, in the circumstances, virtually inevitable.
[27] Accordingly, we reject the appeal against conviction.

Sentence appeal

[28] As we have said, the Judge imposed a term of imprisonment of eight years, with an MPI of four years. It is only the MPI that is challenged.
[29] Section 86(2) of the Sentencing Act 2002 provides:

The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

[30] The appellant’s offending involved, in total, between 580 and 616 grams of methamphetamine. That put it into band four of R v Fatu,[9] which provides for sentencing levels of between 12 years and life imprisonment. The Judge adopted a starting point of 11 years to reflect the appellant’s lesser role in the importations and the unfortunate influence of Messrs Wilkie and Sneller on her. The Judge then gave a “very substantial reduction” of three years to reflect the appellant’s lack of previous convictions, the fact that she had a seven year old daughter and the support that she will have in the community when she is released. The Judge considered that the resulting sentence of eight years was the “absolute minimum” that he could impose.
[31] When considering whether to impose an MPI, the Judge noted that MPIs had been imposed on others involved in the importations and concluded that a non-parole period of one third of the eight year sentence would be insufficient to meet the need for punishment, deterrence and denunciation.
[32] The appellant challenges the Judge’s imposition of an MPI on the ground that none of the criteria in s 86(2) justified its imposition. Unlike the others in the syndicates who had received MPIs, the appellant was not in prison or on parole at the time of the offending and was not a principal. Given that she had no previous convictions, the community did not need protection from her. Mr Stevens referred in particular to the decision of this Court in Fleming v R.[10] There the Court quashed an MPI of four years that had been imposed in respect of a sentence of eight years imprisonment on various charges related to the manufacture and possession of methamphetamine for supply. The Court noted its earlier observation in R v Wong that while a sentencing Judge’s discretion would not be fettered, in cases of very serious drug offending an MPI would almost invariably be imposed.[11] The Court also noted that a survey of the cases had been carried out in R v Anslow.[12] That revealed that MPIs had rarely been imposed for drug related offending where the end sentence was less than nine years imprisonment. The Court in Fleming said that that demarcation gave some indication as to when drug offending fell into the “very serious” category in respect of which an MPI was almost inevitable.[13]
[33] We consider that the Judge was entitled to impose an MPI of four years. The end sentence of eight years imprisonment was extremely generous to the appellant. First, we consider that a higher starting point could properly have been adopted. Second, the appellant received a very substantial reduction for her personal circumstances even though they generally carry little weight in this context, particularly where, as here, no remorse is shown. Another Judge might well have adopted a starting point of 12 years or more and allowed a much smaller discount for mitigating factors, leading to an end sentence of ten or more years. In any event, the nine year sentence identified in Fleming as indicating what constitutes “very serious” offending is by no means an absolute cut-off point.
[34] If an MPI had not been imposed, the appellant would have become eligible for parole after serving two years and eight months of her sentence. We agree with Gendall J that that period would not meet the need for punishment, deterrence and denunciation in the circumstances of this case and that an MPI was required.
[35] Accordingly, we also reject the appeal against sentence.

Decision

[36] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v McSweeney HC Wellington CRI-2007-085-6245, 6 September 2010.
[2] R v Shipton [2007] 2 NZLR 218 (CA).
[3] At [33].
[4] At [35].
[5] R v Keremete CA247/03, 23 October 2003 at [18].
[6] Leonard v R [2010] NZCA 171 at [97]. (Footnotes omitted.)
[7] At [81]–[82].
[8] Guthrie v R [2011] NZCA 202 at [14].
[9] R v Fatu [2006] 2 NZLR 72 (CA) at [36].
[10] Fleming v R [2011] NZCA 646.
[11] R v Wong [2009] NZCA 332 at [21].
[12] See R v Anslow CA182/05, 18 November 2005 at [27].
[13] At [20].