R v Ferguson [2016] NZDC 14569 (29 July 2016)

Last Updated: 2 February 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT TIMARU

CRI-2015-076-000941 [2016] NZDC 14569

THE QUEEN

v

_{STEVIE FERGUSON}

Date:	29 July 2016
Appearances:	M Beattie for the Crown A N D Garrett for the Defendant
Judgment:	29 July 2016

_{ORAL JUDGMENT OF JUDGE J E MAZE}

[1] The defendant, Stevie Ferguson, is charged with conspiring to supply a Class A drug, offering to supply a Class A drug and offering to supply a Class C controlled drug. All three are representative charges proceeding to trial by Judge alone. It therefore follows that if the Crown proves an incident which is within the charge on at least one occasion, then the representative charge can be proven.

[2] This hearing began on 15 June 2016. At that stage a preliminary issue arose at the close of the Crown case as to the admissibility of evidence found within cell phone records. We adjourned on a part-heard basis so that counsel could file submissions. Mr Garrett has abandoned the argument. He accepts the evidence of what was found in the cell phone text messages is admissible.

[3] The contents of the cellphone account for [phone number deleted] which I

_{will call “Account 5802” were obtained by the police under a production order}

R v STEVIE FERGUSON [2016] NZDC 14569 [29 July 2016]

obtained under the Search and Surveillance Act 2012. Constable Bellett applied for the production order on 27 July 2015. He was looking for data relating to the use of account 5802 and he referred to messages dated 16 June 2015 to or from account 5802 which had emerged from data obtained under another production order in relation to another account. The messages of 16 June 2015 also contained words commonly used in relation to methamphetamine supply. Constable Bellett attributed account 5802 to the defendant in his application based upon what was plainly old and ambivalent information. The Crown’s argument was that attribution of the account 5802 to any person was not required for a valid production order, and as I have said already Mr Garrett had abandoned the argument. I do intend to cover it simply because I think it is important to note the basis upon which we proceeded further.

[4] Sections 70 to 79 of the Act apply and s 70 defines call associated data as information as to the origin, direction, destination or termination of the telecommunication and includes telephone numbers, time and duration of call and, in the case of a telecommunication from a mobile phone, the point at which the telecommunication first enters a network. It does not therefore include the content of the telecommunication. Therefore ‘call associated data’ does not include the name and ownership of a phone account. An application for a production order under s 71 seeks access to documents, and under s 70 “document” includes call associated data and the content of telecommunications. Section 71 requires the applicant for a production order to particularise his name, the applicable legal provisions, the offence suspected, the facts relied upon for reasonable grounds to suspect that offence, the document sought, reasonable grounds for believing the company against whom the order is sought has the documents, and whether production should be a single event on ongoing. It is plain the section requires identification of the account, why access is sought and the links between the suspected offending as specified and that account. A production order can only issue if the issuing officer finds reasonable grounds to suspect an offence has been committed, and reasonable grounds to believe the documents sought are in the control of the company against whom the order is sought and will contain evidence of that offence.

[5] On a plain reading of those sections then, evidence of the owner or user of the documents which are the subject of the production order, is simply not required by the statute. While in some situations evidence of the identity of the owner or user of a phone account may be crucial for finding reasonable grounds to suspect the nominated offence, it is not the case here, as logically the reasonable grounds to suspect an offence arise from the data obtained in relation to the other phone account under the earlier production order. In short, it does not matter that the identity of the secondary party to the texts is anonymous if the texts themselves were lawfully obtained and formed reasonable grounds to suspect the offence nominated. So, although it is not necessary to do so, I conclude that the Crown submissions are correct and the focus in s 72 is on the reasonable grounds to suspect the nominated offence is or has been occurring as the trigger for access to documents. Identity of the potential offender is not an issue per se.

[6] We resumed the hearing then, with the defendant electing neither to give nor call evidence. There was a position reserved in relation to the photo booklet and its admissibility, but as that has not been advanced further, I assume that it falls into the same category and that Mr Garrett is not continuing that objection.

[7] Mr Garrett submits that the evidence is insufficient to establish to the required standard, the identity of the sender of the texts as this defendant, and further that the texts in themselves are sufficient for the offences charged. So who is proven to be the texter? I note that this defendant was not found with a cellphone when searched. She denied having a cellphone but admitted having had two in the last year or two; packaging for a SIM card was found. However, when searching, the police found a pipe for methamphetamine and the defendant admitted using methamphetamine. They also found a cannabis grinder, cigarette papers, a bag of small plastic bags, scales, a straw, a razor blade, further razor blades, a plastic container with used plastic bags in, pieces of tinfoil and a plastic bag containing a small amount of cannabis.

[8] The starting point on the issue of identity is, I accept, exhibit 6, and exhibit 6 is a printout of texts to or from 5802 on 9 July, 29 June, 24 June (several of those at different times). There are texts sent to the number 5802, “Hey steviejane hows it

going?” There is a text to that number, “I am on my way now, wht ya addy hun,” (which which I accept is, “What’s your address,” because the answer from 5802 is, “[address deleted],” which is the defendant’s address). Then there is the group of messages for 24 June, with one from 5802 saying, “Hey ots stevie upto,” and, “It’s,” and then, “Swt as then bro was goin to c if u wanted to catch up. We n Ash,” and just general conversation. The response from 3821 is, “Who?” And her response is, “Stevie ferguson.” So those are, in combination, clear indications that Stevie Ferguson was using 5802 in late June and early July. There are also references to [address deleted] which is known to be the defendant’s address, and that was known to be her address at the relevant time at the end of June/early July 2015. There is also the reference specifically to, “Hey Stevie Jane,” on 9 July and this defendant’s name is Stevie Jane Ferguson.

[9] So in combination it seems to me that evidence is clear that the user of 5802 in late June and early July, for the purpose of sending those texts, was indeed this defendant. It is the only reasonable conclusion to draw from those records, and I do not consider that at the time those texts were sent it would be reasonable to consider that it was anyone else in light of the content of the texts themselves. So the evidence establishes, therefore, beyond reasonable doubt that the defendant was the user of that phone account in late June and early July 2015 and those of course are dates highly relevant to the offending as charged.

[10] In those circumstances, in the absence of there being evidence of any other person also using the phone – and none has been presented – then the only reasonable inference which I accept and do draw is that the sender of texts from that number throughout the end of June and early July has to have been this defendant. On the evidence available to me there is no other reasonable possibility.

[11] I turn now to the contents of the texts. Exhibit 3 is the booklet of texts divided up under headings of, “Conspiracy to Supply, Offers to Supply,” and so on. There are references in texts to, “A half for 500,” which the evidence of Detective Sergeant Quested indicates is consistent with a reference to half an ounce of methamphetamine and a price appropriate to that. The text referred to, “A dolly for 100,” that is 16 June, and, “A dolly,” 17 June and, “Two dollies,” 19 June and the

expert evidence is that that is a name commonly used for a point. Exchanges on 17

June, “U put n glass pipe nd smoke it. Not weed,” are clearly consistent with a reference to methamphetamine, and references to “Q” on 23 June are consistent with a quarter and methamphetamine. There is reference to, “A point” on 30 June and 2

July and that, as Detective Sergeant Quested says, is consistent with a known term for methamphetamine and measurement, and references to “Rock” on 2 July and “Wham” and again they are street terms for methamphetamine. Those texts contain, in some instances, clear references to payments of cash and some show a refusal to talk if payment is not immediately available, and I refer to 19 June through to 21

June. At the bottom of that little group, “Can I pay cash for one and tik the other til monday?” So it is, “Sorry no tik.”

[12] I am satisfied that these texts are about methamphetamine supply. The sheer number of them excludes scope for ambiguity. The first group, 2 June, are a discussion between two people about supplying. That is the defendant and one other. I will need to speak to counsel as to whether an amendment to the conspiracy charge from conspiring with two persons to conspiring with one person may be required, but that is a matter we will address shortly. For the purposes of the decision plainly these texts are about methamphetamine supply, and on 2 June a discussion between two people about supplying with the assistance of another, a third person with methamphetamine. And it is clearly the common intent in both texters to do so at a price fixed.

[13] There is repetition of contact in almost identical terms on 3 July, and the same number, texts 5802, with a clear reference to “Q” and I have already referred to Detective Sergeant Quested’s evidence on that.

[14] So aside of the issue of the possibility of the need to amend the charge to reflect one other rather two other persons, I am satisfied beyond reasonable doubt the elements of the charge of conspiring in relation to methamphetamine are met. I am satisfied it was methamphetamine being discussed, and I am satisfied on the evidence it was a discussion evidencing an agreement between this defendant and another to provide methamphetamine to that third party. I am unable to say those terms are ambiguous.

[15] The second charge is offering to sell methamphetamine. Texts from the defendant to others offering what is plainly methamphetamine are evident on 16, 17,

21, 23, 28 and 30 June, and 2, 3 and 9 July. Some have a response indicating likely sales. I exclude 17 June, 21 June and 2 and 9 July, but all are clear offers to supply methamphetamine, and so the elements of that offence must be seen as satisfied on the available evidence. It really does amount to absolute speculation to suggest otherwise.

[16] Finally, I turn to offering to supply Class C. These are texts in relation to 24 and 25 June and 4 July. References to 50s, tin and weed are all references to cannabis; I accept the uncontroverted evidence of Detective Sergeant Quested. Obviously this is low end dealing and there is only a single apparent sale for 4 July.

[17] So the evidence establishes the three charges are met to the required standard, and subject to the possibility of amendment of one charge, the defendant must be found guilty on each.

J E Maze

District Court Judge