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Kayrouz v R [2014] NZCA 139 (14 April 2014)

Last Updated: 17 April 2014

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
6 March 2014
Court:
Randerson, Venning and Cooper JJ
Counsel:
P G Mabey QC for Appellant J M Jelas for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The application for an extension of time is granted.
  2. The appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

[1] The appellant, Simon Kayrouz, and four co-offenders were charged with offending under the Misuse of Drugs Act 1975.
[2] The Crown alleged that one of the appellant’s co-offenders, Stephen Gray, led a conspiracy to produce methamphetamine and distribute methamphetamine, LSD and cannabis. It was alleged that Mr Gray was the instigator and that he engaged the services of the appellant and others. It was the Crown’s case that the appellant was the cook who manufactured the methamphetamine for Mr Gray. Other co-offenders, Messrs Haine, Murphy and Carlisle were allegedly responsible for the onward distribution of drugs supplied to them by Mr Gray.
[3] Mr Gray pleaded guilty at the commencement of the trial to five counts relating to the supply or possession for supply of methamphetamine and LSD, and the sale and cultivation of cannabis. He denied any part in the manufacturing of methamphetamine.
[4] The appellant was charged in five counts of a 16 count indictment. They were:
[5] The appellant was convicted on all five counts after a jury trial before Priestley J.[1] He now appeals against his conviction. Although three grounds of appeal were raised in the notice of appeal, the only ground pursued is a challenge to the admission at the trial of intercepted communications, derived from interception devices that had been installed in and around Mr Gray’s home. The Crown sought to rely on the intercepted communications, claiming they were admissible against the appellant pursuant to the co-conspirators’ rule.
[6] Trial counsel for the appellant sought to challenge the admissibility of the intercepted communications prior to the trial and at the outset of it. However, Priestley J considered that the issue would be more appropriately addressed at the conclusion of the Crown’s case.[2] Mr Mabey QC, who has appeared for the appellant on the appeal accepts that was a sensible course to follow. In the result the issue was raised as the basis of an application for discharge under s 347 of the Crimes Act 1961 at the conclusion of the Crown’s case, but rejected by the judge.[3]
[7] Mr Mabey accepts that there was evidence that Mr Gray was involved in an unlawful joint enterprise with somebody. However, he contends that there was insufficient evidence to satisfy the Court on an objective basis that the appellant was a participant in the conspiracy. It followed that hearsay statements in the intercepted communications were inadmissible. An additional argument advanced is that the statements in question were not made “in furtherance of” the conspiracy, and should have been rejected for that reason. Mr Mabey submits that in the circumstances the Judge was wrong to allow the Crown to refer to and rely upon the statements in its case against the appellant. It followed that there was a real risk of a miscarriage of justice.

Membership of the conspiracy

Relevant facts

[8] The appellant lived rent-free in a house situated on a farm owned by Mr Gray, at Mangakino Road, Te Uku. The farm was managed by a Mr Ross, who lived on another property owned by Mr Gray located on the other side of the Hamilton/Raglan Highway.[4] The properties were linked by a tunnel passing under the road.
[9] When first interviewed by the police the appellant said that he was able to live rent-free in the farmhouse in exchange for work on the farm, and he described himself as a farm hand. He said that there was a farm manager who came and went from the property from time to time, but he did not know his name. He described the work he carried out as “fixing broken fences and that sort of thing”. He was unable to provide what his nominal rate of pay was, claiming that he simply worked “until it was about right”.
[10] On a subsequent occasion, he told the police that he knew the farm manager’s name was Graeme, although he did not know his last name. He said he was an electrical engineer, but not doing much of that work at the moment, because he was working on the farm. Asked what sort of work he did, he said “general farm hand stuff, moving cattle, fencing, that sort of stuff”. He confirmed that he lived in the house, and said that he worked in exchange for his rent and power.
[11] At the trial Mr Gray gave evidence inconsistent with the appellant’s account. He described the work done by the appellant as repair, welding and electrical work. Although the appellant would help Mr Ross and would shift stock when Mr Gray was not able to do so, Mr Gray said that the appellant was “not the best stockman”. He also denied that the appellant lived on the land rent-free, stating that from time to time that he would receive cash from him to “make up” or “have a square up”.
[12] The police searched the appellant’s house, sheds associated with it and the farm itself on three separate occasions. On the first occasion, at five different locations referred to as sites A–E, the police discovered equipment and substances able to be used in the manufacture of methamphetamine. The sites were within easy walking distance from the appellant’s house, and could also be accessed from there by farm bike. Evidence found at those sites included hydrophosphorous acid,[5] a caustic liquid containing pseudoephedrine (which had been extracted), hydrochloric acid, phosphorus acid, a Parr bomb, and a condenser. In addition, other items were found which are commonly associated with the manufacture of methamphetamine and dealing in that drug. These included firearms, cutting agents, electronic scales and plastic snaplock bags.
[13] Methamphetamine was detected on a number of items and two snaplock bags containing methamphetamine were located. The amount of methamphetamine totalled 8.4 grams.
[14] Some of the items found were wrapped in newspapers with dates between 31 January and 18 March 2009, within the period when the Crown alleged manufacturing took place, and at a time when the appellant was residing in the house on the farm.
[15] There was evidence linking the appellant and Mr Gray to items found at sites A–E. At site B, a Sistema container bearing traces of methamphetamine was located. Another Sistema brand container which tested positive for methamphetamine was found in a shed attached to the appellant’s dwelling. Sistema brand containers were also located at Mr Gray’s house, some actually containing methamphetamine and others which tested positive for methamphetamine.
[16] In a subsequent search, the police found a receipt for four camouflage tarpaulins at the appellant’s house. Camouflage tarpaulins of the type described on the receipt were found in a black plastic box marked with a white skull and crossbones, in a shed attached to the appellant’s dwelling. The box also contained numerous methamphetamine pipes wrapped in newspapers, a 20 litre plastic container of caustic liquid containing pseudoephedrine, and camouflage netting. A black container with the same distinctive skull and crossbones design was located on the farm at site C. The items found there were covered by camouflage tarpaulins, albeit of a different design (incorporating netting) to those found in the appellant’s garage. In relation to the design of the camouflage, Mr Mabey accepted that there was evidence that similar tarpaulins to those found in the black plastic box were found with some of the items secreted on the farm.
[17] The police also located a receipt for the purchase of acetone from a local hardware store, in the appellant’s garage.
[18] At the time of the first search of the appellant’s house, the police found a sum of a little over $4000. There was no credible explanation for the presence of the money.
[19] The Crown also sought to rely on the intercepted communications to which we have earlier referred. Most of those were on occasions when the appellant was absent. However, one in which he participated involved a discussion between Mr Gray, his mother Heather, and the appellant. The transcript of that discussion, which took place on Thursday 27 August 2009 during the period when, on the Crown’s case, the conspiracy was afoot was as follows:

Stephen: Mum you remember Si?

Heather: Who?

Stephen: Si.

Kayrouz: How are you? We met a while ago, at your house.

Heather: You know me.

Kayrouz: Yep, yep, I’ve met you before.

Stephen: He’s been to your house ... He lives out the farm

Kayrouz: I live on the farm now.

Stephen: Out Raglan on the farm.

Heather: Yeah Raglan.

[20] We will discuss other intercepted communications below when considering the appellant’s argument that they were not “in furtherance” of the conspiracy.

The law

[21] Section 12A of the Evidence Act 2006 preserves the common law rules relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises. As was explained by this Court in R v Morris (Lee):[6]

Before the acts or declarations of one alleged conspirator will be admitted as evidence against any other alleged co-conspirator, two threshold issues have to be determined by the Judge. The first is whether it has been shown that there was in fact a conspiracy of the type alleged and that the persons said to be its members (or at least some of them, including the accused) were in fact members of the conspiracy.

[22] Further, in R v Qiu this Court clarified the law (left uncertain in R v Buckton[7]) as to whether the Crown had to demonstrate the existence of the conspiracy or joint enterprise on the balance of probabilities, or whether it was sufficient to meet the lesser standard of adducing reasonable evidence of those matters.[8] The answer given in R v Qiu was the reasonable evidence test applied, thereby aligning New Zealand’s law with that of Australia[9] and England.[10] That outcome was confirmed by the Supreme Court in R v Qiu.[11] The same standard of proof must be met in respect of the involvement of the conspirators.
[23] It is also clear that the defendant’s membership of the conspiracy cannot be proved by reference to what the conspirators have said about the accused in his absence. As this Court said in R v Messenger:[12]

... the accused’s membership of the conspiracy or joint enterprise cannot be shown by reference to what the conspirators have said about the accused in his or her absence. It is necessary for the Crown, having shown that there is reasonable evidence of a conspiracy or joint enterprise, to prove the accused’s membership of it to the requisite standard by independent evidence, external to the statements which have been made in the absence of the accused.

Discussion

[24] As noted, Mr Mabey conceded that there was reasonable evidence of the existence of a conspiracy. However, the appellant contends that there was not reasonable evidence of the appellant’s membership of the conspiracy without reference to the intercepted communications that took place in the appellant’s absence.
[25] We disagree, for a number of reasons. We refer first to the unconvincing evidence about the work allegedly carried out by the appellant on the farm. The appellant had lived in the house since approximately June 2008 and was residing there over the period of the alleged offending, rent–free and on the basis that Mr Gray was also responsible for the cost of power consumed. Yet the appellant was not able to give a coherent explanation of the work that he carried out on the farm or state the rate at which he was paid. In important respects, the description by Mr Gray at the trial of the work the appellant carried out was inconsistent with his own. Further, the appellant’s claim that he simply worked until it was “about right”, was inconsistent with Mr Gray’s evidence that from time to time he would receive money from the appellant.
[26] We consider this evidence could legitimately found a doubt about the genuineness of the appellant’s claim to be employed as a farm worker on the property. In this context, the fact there was no adequate explanation for the presence of $4000 in cash when the police searched the house is also significant.
[27] Next, as earlier noted, the sites A–E at which incriminating evidence was found were easily accessible from the appellant’s house, whether on foot or using a farm vehicle. While Mr Gray and Mr Ross could also have accessed those sites, the most likely route that would be taken to them passed in reasonably close proximity to the appellant’s house. The discovery by the police of a black container with a skull and crossbones marking in a shed attached to the appellant’s dwelling is significant in the context that a black plastic box with the same marking was also found at site C. The significance is enhanced by the fact that the box in the shed contained a container of liquid with pseudoephedrine in it and three camouflage tarpaulins. The link with the appellant is underlined by the receipt found at the appellant’s house for four camouflage tarpaulins of the type present in the box.
[28] Sistema brand containers found at Mr Gray’s house, either contained methamphetamine or tested positive for the presence of methamphetamine. At site B a container bearing traces of methamphetamine was also located. A similar container was found in the shed associated with the appellant’s house. It also tested positive for methamphetamine.
[29] Mr Mabey argued it was significant that the items found on the farm did not go so far as to establish that methamphetamine had been manufactured, and referred to the absence of iodine, an item essential for its manufacture. However, there was evidence that pseudoephedrine was extracted, and there could be many explanations for the absence of iodine. The points made by Mr Mabey would be relevant for the jury’s assessment of the evidence: they are unpersuasive on the issue of whether there was reasonable evidence of the appellant’s membership of the conspiracy.
[30] While not of great significance in itself, the intercepted conversation that we have earlier set out is significant because it tends to rebut the suggestion made by the appellant when interviewed by the police that he had not met Mr Gray prior to commencing occupation of the farmhouse. The clear inference available from the intercepted conversation was that the appellant had met Mr Gray’s mother at a time prior to his occupation of the house. Mr Gray’s inquiry as to whether his mother remembered the appellant shows that he was aware of that meeting and that he must have known the appellant before the appellant took up residence in the house on the farm.

Conclusion

[31] Looking at the overall evidence, we are in no doubt that the Crown had adduced reasonable evidence of the appellant’s participation in the conspiracy, without reliance on hearsay statements in the intercepted communications.

Intercepted communications

[32] Mr Mabey challenged the admissibility of a number of intercepted communications on which the Crown relied to establish its case against the appellant as the methamphetamine “cook”. He argued that the statements should not have been admitted because they were not statements made “in furtherance” of the conspiracy. Before addressing the particular communications challenged it is appropriate to outline the relevant law.

The law

[33] Once the Crown has adduced reasonable evidence as to the existence of a conspiracy and the defendant’s membership of it, it must be shown that the statements sought to be admitted under the co-conspirators rule are reasonably open to the interpretation that they have been made in furtherance of the conspiracy.[13]
[34] In R v Messenger the Court referred to statements that were “made ... for the purpose of advancing the common design”.[14] Similarly, in Goffe v R, this Court said:[15]

[50] The generally accepted basis for the admission of co-conspirators’ statements is that of implied agency. Each conspirator or party to a joint enterprise is deemed by law to have implied authority for the others to act or speak in order to further the common purpose: Tripodi v R.[16] For the acts or statement to be admissible against other conspirators on that basis, the act or statement in question must be in furtherance or in advancement of the actual conspiracy. The common purpose must be continuing at the time of the act or statement. A statement recording that what has been done has been completed, either successfully or, as in this case, unsuccessfully, is not within the scope of the principle: Blake and Tye,[17] R v Devonport, Pirano & White[18] and R v Messenger[19]).

[35] The question of whether a conversation between joint conspirators was for the purpose of advancing or furthering the conspiracy needs to be approached in a realistic and commonsense way. In this respect, we consider there is merit in the approach adopted by the English Court of Appeal in R v Platten, where it was held that statements made during the conspiracy will be admissible when they are “part of the natural process of making the arrangements to carry out the conspiracy”.[20] We refer also to the Court’s acceptance in Platten that evidence would be admissible when it could be said that it “showed the enterprise in operation”.[21] In contrast, merely incidental statements even if they refer to the conspiracy or aspects of it are not admissible if they are not intended to advance or further the common purpose of the conspiracy.
[36] In New Zealand, the courts have taken a reasonably broad approach to what communications or other evidence may be said to be intended to advance the common design:
[37] We note that while a conversation that is solely about events that have already taken place would not be admissible, if it can be shown that the discussion is for the purposes of keeping the conspirators informed about what is going on so as to ensure that the conspiracy is able to proceed on its course, it will be admissible under the co-conspirators rule.[29] A similar approach is adopted in Australia.[30]

The challenged communications

[38] In the discussion that follows we address the communications that Mr Mabey argued should not have been admitted as part of the case against the appellant by reference to the Tab numbers under which they were collected in the transcripts provided to the jury.
[39] First, under Tab 70, the jury received a transcript of a discussion between Mr Gray and Mr Ross which included the following exchanges:

Gray: Hey um I’m just letting you know that Si wanted to have a catch up with you, I think he’s um.

Ross: Yeah oh I’ll go an, I’ve got to go and check some stock soon so I’ll.

Gray: Yeah and I just want to let you know that joker with the pump mate is either going come this afternoon or first thing this morning.

Ross: OK.

Gray: I don’t want no-one driving, drive in the wrong fucking house or something.

Ross: Yeah ok.

Gray: Um alright and another thing also I need to um catch up with you to grab, one of my mates has been chasing me.

Ross: Oh yeah, yeah ok.

[40] Mr Mabey accepted that the reference to “Si” was to the appellant. However, he submitted that all that Mr Gray said was that the appellant wished to be in contact with Mr Ross, and it could not be said that this was in furtherance of the joint enterprise. The difficulty with that proposition is that to rule the statement inadmissible on that basis would be to decide a matter properly left for the jury to determine. We consider that the exchange was capable of being seen as in furtherance of the conspiracy, depending on the view the jury took about what the “catch up” would have been about. That would be a decision best made in the context of the other matters being discussed in that conversation and all the evidence before the jury.
[41] Mr Mabey referred to the communications under Tab 160 as a “lengthy series of communications between Mr Gray and others... which did not advance the case against [the appellant]” who he claimed was not identified directly or indirectly. He complained that nevertheless they had been relied on as part of the case against the appellant. However, once it was established (on the basis already discussed) that there was a conspiracy and the appellant was a member of it, evidence that showed the ongoing operation of the conspiracy would be admissible against the appellant whether or not he was identified directly or indirectly. Its weight would of course be a matter for the jury.
[42] The evidence involved communications between Mr Gray and others. We are satisfied that most of the conversations could have been seen by the jury as having been in furtherance of the conspiracy. Those not in that category were completely insignificant. For example, in one conversation Mr Gray makes a telephone call asking for Brett, but the unknown female who answers the call says she thinks he has the wrong number. On another occasion he rings to be told that Brett is not at home. Brett is Mr Brett Anderson, with whom Mr Gray had communications which were clearly in furtherance of the conspiracy.
[43] Under Tab 227, the jury were provided with a series of communications between Mr Gray, a Mr Bates and an unknown male. One discussion on which Mr Mabey focused contained the following:

UKM: So your mate come through with some more stuff did he?

Gray: Yeah I was just trying to sort it upstairs, it’s gone. Had 26 and it lasted a week.

UKM: You’re serious? Fucken hell, (laughs) geez.

Gray: That’s why I just, the last of it’s going tonight, just waiting for Chucky to come through.

UKM: Yeah.

Gray: Just hope there’s enough there.

UKM: Oh well he gets what he gets.

Gray: Oh no I told him I’d keep him ten.

UKM: Yeah.

[44] Mr Mabey accepts that the reference to “Chucky” was a reference to a Mr Barber, who bought significant quantities of methamphetamine from Mr Gray. He submitted however that the communication was not “in furtherance” of the conspiracy, and should not have been admitted. The conversation demonstrates that drugs had been received; most had been sold but a buyer was coming that evening to acquire the last of the drugs. This conversation was not merely a reference to events that had been concluded but extends to a conversation about the completion of the supply of the drugs which had not then happened but was anticipated shortly afterwards. As well, one of the co-conspirators (Mr Bates) was present during this conversation and it could be viewed as Mr Gray updating Mr Bates about the progress of the conspiracy in order to assist in its ongoing operation.
[45] Another intercepted communication (in Tab 238) which Mr Mabey claimed should not have been relied on in the case against the appellant contained the following discussion between Mr Gray and Mr Ross shortly after 7 pm on 18 August 2009:

Gray: Heya mate. ... Heya ... get to your place in about an hour’s time. I’ve got, I’ve got the young fulla going to have a catch up with us tomorrow. Is that a hassle? Oh I was going to come out in about an hour’s time. I got I got a funeral to go to tomorrow.

Ross: Oh yeah nah well sweet as I’ll, I’ll just wait for you to get here just I’m feeling pretty fucked I’ve had a hard day.

Gray: Oh well listen hey.

Ross: Nah, nah you’re right just come out and I’ll, I’ll just shoot down and get it ...

Gray: Alright because I’ve got to go and catch up on the other side if the only other thing to do if you want to is just drop it off here tomorrow sometime.

Ross: Ah.

Gray: Whatever suits you best?

Ross: Yeah um I’ll I’ll see what Sheree says aye she’s, she’s ...

Gray: Hey mate what I’ll do is I’ll call by and I’ll have a yack to you because I’ve got to go and see the other fulla.

Ross: OK

Gray: About an hour that’s not too late.

Ross: Nah, nah I’m right.

[46] Mr Gray accepted in cross-examination by counsel for the Crown, that his reference to going to “catch up on the other side” was a reference to visiting the appellant. The Crown pointed to the fact that this conversation took place soon after Mr Gray had been visited by Mr Anderson, who supplied Contac NT for use in the methamphetamine manufacturing process. It alleged that a text message sent by the appellant to Mr Gray later on the evening of the above discussion, saying “All good” would have been in relation to the manufacture of methamphetamine.
[47] Whether or not that was so was a question for the jury, as was the issue of whether they were satisfied that Mr Gray was going to see the appellant about the manufacture of methamphetamine. But the intercepted communication was clearly capable of being seen as referring to action about to be taken to further the conspiracy, and that would depend on the jury’s view of it in the context of all the relevant evidence.
[48] We refer next to a discussion in Tab 273 between Mr Gray, Mr Michael Gray and Mr Bates. Mr Mabey submitted that there was nothing in the discussion that was admissible against the appellant. We disagree. We consider that it was relevant: there was discussion about complaints concerning the quality and strength of “stuff” recently supplied, and the payment of money for further supplies and using pure distilled water, presumably in the manufacturing process. This was all admissible, and relevant evidence about the ongoing operation of the conspiracy.
[49] In Tab 280 there was a conversation between Mr Gray and Mr Bates in which Mr Gray expressly referred to the appellant as the cook:

Gray: My mate, my mates meant to come in tomorrow with similar to this. ... bloody good. Fuck you know I woke every cunt up, I didn’t go there till three o’clock.

Bates: (Laughs)

Gray: I told him aye, I said mate I said, I don’t give a fuck but you’re fucking killing yourself. And you know what he agrees with me.

Bates: Mm.

Gray: Fuck mate he’s a good cunt aye. ... You know when he does a cook normally he keeps for himself a bit of percy between cooks. He has a cook every two months ... ... he keeps for himself though? ... usually runs out. Usually comes and asks me –

Bates: (Laughs)

Gray: What are ya after mate, one? ... I said to him the other day mate I said don’t give a fuck, I said you’re going you’re going to end up fucking kill yourself. She said why, I said the cunt next to her ... said fuck he said I’ve got to stop this. I said right ask yourself man.

[50] In cross-examination, Mr Gray acknowledged that “the mate” he was expecting to come and see him was the appellant, and that he was expecting him to bring methamphetamine, although he maintained he was not expecting the appellant to have manufactured it, and also said that the appellant did not in fact provide it.
[51] Mr Mabey submitted that Mr Gray’s statements were not “in furtherance of” the conspiracy, because they would not advance the enterprise. He argued that a reference to the appellant’s “cooking habits” could not be in furtherance of the enterprise. It will be apparent from our earlier discussion of the relevant law that we reject that approach as too narrow. The reference to the appellant “coming tomorrow” was plainly a reference to something that would happen in furtherance of the conspiracy. The description of the appellant’s practice of doing a cook every two months, and retaining a bit of “percy” for himself between cooks are relevant as showing the conspiracy in operation. The concerns that Mr Gray expressed about the appellant’s state of health were also, we think, legitimately before the jury. The inference available from what Mr Gray said was that he was concerned about the appellant’s well being. Conveying that concern to another conspirator was in furtherance of the conspiracy since it bore upon the appellant’s capacity to continue to take part in the conspiracy.
[52] The final issues pursued by Mr Mabey related to an intercepted conversation between Mr Gray and Mr Ross on Tuesday 8 September 2009 (under tab 326) when there was the following exchange:

Gray: Is Si gonna do some work this week you reckon?

Ross: Ah, he’s gonna come see me tomorrow he said, I would say. I don’t think he’s too phased about it aye, cause its –

Gray: Mate I hope he fucken does I’ve got Chucky coming up.

Ross: Yeah, Oh I’ll tell him.

Gray: Oh he knows. I don’t want to pressure him either mate.

Ross: Yeah.

Gray: Cause if you don’t feel comfy don’t do it.

Ross: Yeah.

Gray: Life’s too short for that.

[53] Mr Mabey submitted that the statements of Mr Gray to Mr Ross were not in furtherance of the joint enterprise and they did not advance it in the manner required by the co-conspirator’s rule.
[54] We do not accept that submission.
[55] In the course of the quoted passage, Mr Gray asks Mr Ross whether he thinks the appellant is going to do some “work” that week, to which Mr Ross replies that he thought he would come and see him tomorrow. Mr Gray then tells Mr Ross of the imminent visit of “Chucky” (Mr Barber), his regular customer. Mr Ross then offers to tell the appellant about Mr Barber’s visit. However, Mr Gray says that he does not want the appellant pressured.
[56] The whole discussion is about arrangements for the supply to Mr Barber of what the jury could infer was methamphetamine. In our view this was clearly a conversation within the ambit of the co-conspirators rule as it concerned continued dealings as well as comprising an update on the progress of the conspiracy which was in furtherance of it.

Result

[57] As this appeal was filed out of time, the application for an extension of time to appeal is granted, there being no opposition from the respondent. The appeal is dismissed.


Solicitors:
Jackson Reeves, Tauranga for Appellant
Crown Law Office, Wellington for Respondent

[1] R v Gray HC Hamilton CRI-2010-019-2006, 10 December 2012.

[2] R v Kayrouz HC Hamilton CRI-2010-019-2006, 15 October 2012.

[3] R v Kayrouz HC Hamilton CRI-2010-019-2006, 14 November 2012 (Ruling of Priestley J: Section 347 Crimes Act 1961 application).

[4] Mr Ross had earlier pleaded guilty to offending under the Misuse of Drugs Act 1975, including the supply of methamphetamine.

[5] The jury heard evidence that hydrophosphorous acid does not have any household uses, has limited industrial uses, cannot be purchased from a hardware store or a supermarket, and must be obtained from a chemical supply store.

[6] R v Morris (Lee) [2001] 3 NZLR 759 (CA) at [16].

[7] R v Buckton [1985] 2 NZLR 257 (CA).

[8] R v Qiu [2007] 2 NZLR 433 (CA).

[9] Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 and Ahern v R [1988] HCA 39; (1988) 165 CLR 87.

[10] R v Jones [1997] 2 Cr App R 119 (CA).

[11] Qiu v R [2008] NZSC 51, [2008] 1 NZLR 1 at [28].

[12] R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [18]. R v Morris(Lee), above n 6, at [18] is to the same effect.

[13] R v Morris (Lee), above n 3, at [31]; R v Messenger, above n 12, at [20]; and R v Platten [2006] EWCA Crim 140 (CA) at [22]. See too P Richardson (ed) Archbold Criminal Pleading, Evidence and Practice (Sweet & Maxwell, London, 2014) at [33-66].

[14] R v Messenger, above n 12, at [20].

[15] Goffe v R [2011] NZCA 186, [2011] 2 NZLR 771 at [50].

[16] Tripodi v R [1961] HCA 22; (1961) 104 CLR 1.

[17] R v Blake (1844) 6 QB 126.

[18] R v Devenport, Pirano & White [1996] Crim LR 255.

[19] R v Messenger, above n 12.

[20] R v Platten, above n 13, at [35].

[21] At [36], following R v Barham [1997] 2 Cr App R 119 (CA).

[22] R v McKenzie [2013] NZSC 109.

[23] At [12].

[24] R v Humphries [1982] 1 NZLR 353 (CA) at 356.

[25] R v Mahutoto [2001] 2 NZLR 115 (HC).

[26] At [47].

[27] R v Morris (Lee), above n 6.

[28] At [33].

[29] Hodge M. Malek (ed) Phipson on Evidence (17th ed, Sweet & Maxwell, London, 2010) at [3149].

[30] J D Heydon Cross on Evidence (8th ed, Lexis Nexis Butterworths, Australia, 2010) at [33-565].

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