Haddon v R [2016] NZCA 460 (23 September 2016)

Last Updated: 27 September 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA63/2016 [2016] NZCA 460
BETWEEN	MARK TAIAROA HADDON Appellant
AND	THE QUEEN Respondent

Hearing:	5 September 2016
Court:	Asher, Mallon and Whata JJ
Counsel:	N J Sainsbury for Appellant S C Carter for Respondent
Judgment:	23 September 2016 at 3.00 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

[1] Mr Haddon was found guilty following a jury trial in the Wellington District Court before Judge Tompkins on one charge of possession for supply of a Class A controlled drug (methamphetamine), one charge of possession for sale of a Class C controlled drug (cannabis), two charges of unlawful possession of a firearm, three charges of unlawful possession of ammunition and one charge of possession of utensils for the consumption of methamphetamine. He was sentenced to five years and six months’ imprisonment.^[1] He appeals against his conviction on the basis that the jury’s verdicts were unreasonable and against his sentence on the basis that it was manifestly excessive.
[2] The notice of appeal was filed out of time. The delay is explained. The Crown does not oppose an extension of time and we grant one.

Facts

[1] “Operation Walrus” involved the surveillance of the lock up at 15 Waiu Street used by Mr Haddon, George Murray, Anthony Isted and Daniel Skipper. A search of those premises unveiled 27.6 grams of methamphetamine and 153 grams of cannabis, methamphetamine pipes, firearms and ammunition.^[2]
[2] A search of Mr Haddon’s partner’s house in Wainuiomata (the Wainuiomata address) was carried out. He was present at the address during the search. The search found $30,000 in cash in a white Holden motor vehicle which Mr Haddon was using and around $3,000 in cash in a pair of discarded cargo pants which belonged to him. Six cell phones and seven SIM cards were also found: four of the phones and five SIM cards were in a cabinet drawer in the master bedroom, one of the phones was in the Holden motor vehicle and the other phone and SIM cards were in Mr Haddon’s pants. The search also found a small quantity of cannabis and two glass pipes used for smoking methamphetamine.

Assessment

[3] Mr Sainsbury for Mr Haddon argued that the Crown evidence could not be seen as sufficient to support the verdicts, and they were unreasonable. The central issue for the jury was whether Mr Haddon had possession of the drugs and firearms. The Crown presented a case based on circumstantial evidence, and put it to the jury that:

• (a) Mr Haddon was a frequent visitor and had a key to the lock up in which the methamphetamine, utensils (including scales), cannabis and firearms were found;
• (b) Mr Haddon was in possession (in various locations) of about $30,000 of cash — with a large number of $20 notes — being the common currency for methamphetamine trading;
• (c) Mr Haddon’s explanation for the cash was not convincing;
• (d) Mr Haddon’s DNA was found on one of the firearms;
• (e) Mr Haddon spent a lot of time at the Wainuiomata address with his partner and the jury could conclude that he lived there;
• (f) the search at that address found a number of cell phones and SIM cards, all of which were linked to Mr Haddon’s belongings or the master bedroom where, it seems likely, he would stay;
• (g) a small quantity of cannabis and two glass pipes used for smoking methamphetamine were located at the Wainuiomata address; and
• (h) Mr Skipper, who claimed ownership of the drugs, was an unreliable witness because he was lying to help out a friend.

[4] The defence then closed to the jury with the following core propositions:

• (a) Mr Haddon was one of a number of people using the lock up;
• (b) the drugs were hidden for good reason — drug dealers do not want other people to know they have drugs;
• (c) Mr Haddon had a legitimate repair/restoration business operating out of the lock up/workshop;
• (d) Mr Haddon was paid in cash as shown by records of invoices and receipts and these records were used to produce annual accounts;
• (e) Mr Haddon did not use banks and held onto the cash to pay tax and ACC levies at the end of each year;
• (f) the presence of a number of phones and SIM cards in a household with teenagers was unremarkable in this day and age and there was no evidence of drug dealing on any of these items;
• (g) the Crown’s DNA expert confirmed that this DNA could be explained by innocent transfer, especially if a person was a shedder of skin. Mr Haddon was such a person and he had cellulitis which explains the presence of his DNA one of the firearms and there was evidence that Mr Murray’s DNA was on the other firearm;
• (h) equipment that might be used for cannabis cultivation was explained by the presence of a lizard enclosure;
• (i) Mr Skipper asserted ownership of the methamphetamine; and
• (j) Mr Haddon’s presence at the Wainuiomata address may have been occasional only.

[5] It was for the jury to weigh these competing claims and the verdicts received were not obviously unreasonable.^[3] We now turn to address the specific reasons said to show that the guilty verdicts were unreasonable (which replicate the defence case).^[4]

The drugs were carefully concealed in different locations in large premises and they would not be found easily by accident

[6] The Crown noted that this fact was not disputed and we agree that it does not by itself or in combination with subsequent matters raised, support a conclusion that the verdicts were unreasonable. Mr Haddon’s knowledge of the drugs was always going to be a matter of inference from the evidence as a whole, including evidence that Mr Haddon was a frequent visitor to the premises.

A number of individuals had access to the premises. These included George Murray, Anthony Isted and Daniel Skipper. They also had keys.

[7] This may be so, but it was simply one matter for the jury to weigh in forming a view as to Mr Haddon’s culpability.

The police drugs expert, Christopher Moore, accepted that a criminal who has drugs, especially in large amounts, will be very careful to hide them from his/her associates

[8] This may also be true, but there is nothing to suggest that the jury did not take this evidence into account in forming a view as to Mr Haddon’s culpability.

There were no admissions by Mr Haddon as to knowledge of the presence of the drugs, and/or custody or control of them

[9] This is not a compelling basis for concluding that the jury reasoning was unreasonable, given the clear evidence of Mr Haddon’s frequent use of the lock up, his close proximity to the drugs, the presence of methamphetamine pipes and scales and the large amounts of cash in his possession.

There was no indication of drug deals conducted by Mr Haddon. The cell phones found at the Wainuiomata house contained no evidence of drug dealing. Nor was there indirect evidence such as large numbers of people visiting his address. None of the paraphernalia associated with drug dealing was found. An associate claimed ownership of the drugs.

[10] It is correct that Mr Haddon in his evidence denied any drug dealing, but his explanation for the presence of such a large amount of cash as being from “mechanical jobs” was on its face unconvincing.
[11] The evidence of an associate called by him, Mr Skipper, that the drugs were his was tested by the Crown. There was a sound basis for the jury to conclude that his evidence was unreliable and, indeed, implicated Mr Haddon. To illustrate, in answer to a question in cross-examination about why he had taken so long to come forward about the drugs being his, Mr Skipper observed:

1. If we got caught with it, or they got caught with it yeah there was going to be a trial, there was more than one person that worked at that garage so, it’d be –

Q. Just before you said, “If we got caught with it.”

A. Yeah.

Q. So you and Mark did know about it and did others know about it?

1. No. We’s just in a – well I got caught with it I mean, they were there, all working there, I was in the South Island when the place was raided. They didn’t know it was there and so they’ve charged him, we.
17. More than a slip of the tongue Mr Skipper, because it is “we” isn’t it?
1. Ah mate, it might have been a slip of the tongue, but that’s all it was, was a slip of the tongue.

The jury was wrong to put any weight on the presence of the number of the phones and SIM cards

[12] We accept that the mere presence of phones and SIM cards at the Wainuiomata address is not, by itself, evidence of drug dealing. The absence of evidence on the phones of drug dealing was a further reason for doubt. The point was made by Mr Sainsbury in closing and reinforced by the Judge in his summingup. Mr Sainsbury is also right that, in a modern world of communication, multiple communication devices in a single household are commonplace. But there was evidence from the police drugs expert, Mr Moore, that it is common for drug dealers to use multiple devices and SIM cards to avoid detection. The presence of a number of phones and SIM cards (including the two SIM cards found in Mr Haddon’s wallet in his cargo pants) was therefore relevant to the jury’s assessment when combined with other circumstantial evidence of drug dealing. The weight to be afforded to this evidence was then properly a matter for the jury.

The firearms were well-hidden and the DNA evidence linking Mr Haddon to the firearms was weak

[13] The association between drug dealing and weapons was a matter of expert evidence and for the jury to weigh. Their hidden nature was a relevant factor (as noted) but hardly an obvious basis for saying that any reliance on their presence rendered the verdict unreasonable. The expert DNA evidence provided a link of Mr Haddon to one of the firearms, and it was for the jury to determine whether Mr Haddon’s explanation for the connection was plausible.

Summary

[14] Contrary to Mr Sainsbury’s submission, Mr Haddon’s prior use of cannabis, the large amount of cash found in his possession, the number of SIM cards found (including in his wallet), the scales, the firearms, the presence of closed-circuit television surveillance at the Wainuiomata address and the inadvertent admission by Mr Skipper of joint possession was not weak circumstantial evidence. Rather, this body of evidence provided a sufficient basis for a reasonable jury to reach guilty verdicts in respect of both the drugs and firearms charges.
[15] It was also plainly open to the jury to reject Mr Haddon’s explanations for the presence of the drugs in a lock up frequently used by him, the firearm with his DNA on it and the large amount of disposable cash. The reliability of the key defence witnesses was tested, and their reliability was a matter for the jury. As Ms Carter noted, the Judge in sentencing observed that some of Mr Haddon’s explanations were nonsensical.^[5]
[16] The conviction appeal is dismissed.

Sentence appeal

[17] In sentencing Mr Haddon, Judge Tompkins found that he was the principal or co-principal offender.
[18] Mr Sainsbury submitted that the Judge erred in this finding. He says that the evidence at most shows that any role played by Mr Haddon was likely to involve lesser culpability. In particular that:

• (a) up to five people could have been charged in relation to the firearms; and
• (b) in the absence of actual evidence of drug dealing by him, he should not have been sentenced as if he was a principal.

[19] We consider there was a proper basis for the Judge’s assessment. Mr Haddon appeared to be responsible for the Waiu Street lock up and used it frequently. Large amounts of cash were found in his possession. Mr Skipper’s evidence indicated he was a joint principal. In combination the evidence suggested an active, profitable role as a principal in a methamphetamine enterprise. We therefore see no error in fixing a starting point comprised of four and a half years (or band two of R v Fatu)^[6] together with an uplift of one year for aggravating factors. Indeed, it is well within the range for offending of this nature.^[7]
[20] The sentence appeal is also dismissed.

Result

[21] The application for an extension of time to appeal is granted. The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Haddon [2015] NZDC 21828.

^[2] A Ruger cut-down semi-automatic rifle and a Huglu semi-automatic shotgun.

^[3] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

^[4] The matters identified in the grounds of appeal, written submissions and then in oral argument were not precisely the same. We have assimilated them into the headings that follow.

^[5] R v Haddon, above n 1, at [9].

^[6] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34].

^[7] Mills v R [2016] NZCA 245; R v Honan [2015] NZCA 94; Dodd v R [2013] NZCA 138; Clunie v R [2013] NZCA 110; R v McPherson [2009] NZCA 487; and R v Shepherd [2008] NZCA 190.