R v Duncan [2012] NZHC 3403 (13 December 2012)

Last Updated: 20 December 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-070-7804

CRI-2010-004-22446 [2012] NZHC 3403

THE QUEEN

v

ROYCE ALLAN DUNCAN KENNEDY O'CONNOR WILLIAMS

Hearing: 12 December 2012 (Heard at Rotorua)

Counsel: G Hollister-Jones and N Belton for the Crown

J Bergseng for Mr Duncan

W Lawson for Mr Williams

Judgment: 13 December 2012

JUDGMENT OF WOODHOUSE J (Disputed facts for sentencing)

This judgment was delivered by me on 13 December 2012 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Solicitors:

Mr G Hollister-Jones / Mr N Belton, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

Mr J Bergseng, Bergseng & Co., Solicitors, Tauranga

Mr W Lawson, Lance & Lawson, Solicitors, Rotorua

R V DUNCAN HC TAU CRI-2010-070-7804 [13 December 2012]

[1] This judgment follows a disputed facts hearing for sentencing in respect of charges against Mr Duncan and Mr Williams to which they pleaded guilty. The now admitted offence is that between 20 and 21 September 2010, at Tauranga, each of them wilfully attempted to pervert the course of justice in New Zealand.

[2] The essence of the Crown’s allegations of fact are as follows. On 20

September 2010 a search warrant was executed at Mr Duncan’s home at 5

Bonnieglen Road, near Tauranga. Mr Duncan was arrested. Various items relating to manufacture of methamphetamine were found. The property is in a semi-rural area with a large area of land around the residential buildings and bush and trees in the vicinity. Police wished to conduct an extensive search of the property and placed armed guards on the property over the night of 20-21 September so that the search could continue the following day. The Police cordon remained until 22 September.

[3] The Crown contends: Mr Duncan directed Mr Williams to retrieve items buried at the property; at around 3:00 am on 21 September Mr Williams and an associate surreptitiously went onto the property; Mr Williams and his associate dug up a bucket containing $500,000 and removed it from the property.

[4] Mr Duncan and Mr Williams, through their counsel, acknowledged at the disputed facts hearing that Mr Duncan asked Mr Williams to go onto the property and remove items and this happened. Nothing more is admitted.

[5] The central fact in dispute is whether on this occasion, in the early hours of

21 September 2010, Mr Williams removed $500,000 from the property.

[6] In terms of s 24(2) of the Sentencing Act 2002, removal of $500,000 from the property in the circumstances that are admitted is an aggravating fact for the purposes of sentencing, compared with removal of an unknown item or items. The Crown must prove beyond reasonable doubt that Mr Williams removed $500,000 from the property when he went onto it that morning.

[7] I am satisfied beyond reasonable doubt that $500,000 was removed. The evidence is contained in the intercepted phone conversations played at the disputed facts hearing. The transcripts are in the booklet provided by the Crown. I will summarise the essential reasons for my conclusion by reference to the page number in the booklet.

[8] Page 9. Following his visit to Bonnieglen Road Mr Williams told Mr Duncan’s sister that he has “found mega but fuck I’ve recovered a bit”. From subsequent conversations I am satisfied that this is a reference to a large amount of money. Defence counsel submitted that the second part of the statement suggests that not all of it was obtained. In the overall context of all the conversations I do not agree. Mr Bergseng also submitted that there is no evidence about the word “mega” in terms of drug dealing code. Such evidence is not necessary in this context.

[9] Page 9. Mr Williams told Mr Duncan: “I’ve recovered ... that bucket and ... the big lot”. He told Mr Duncan about digging Police had carried out. There is evidence from Detective Sergeant Morshead, who went to the property later in the morning of 21 September as a consequence of the intercepted conversations. He found a newly dug hole where Police had been digging the day before. Mr Williams in this discussion with Mr Duncan referred again to “that big one, the big lot” with some emphasis in relation to the fact that it was so close to where Police had been digging. Even standing alone, the inference that can be drawn from this, and beyond reasonable doubt, is that Mr Williams had recovered something of real significance. This illustrates a broader inference that I am satisfied can be drawn and, if it is necessary to do so, beyond reasonable doubt. This is that Mr Duncan would not have asked Mr Williams to go to the property in the early hours of the morning and in the circumstances requiring evasion of a Police cordon, unless it was to recover something of real significance. And I am satisfied that Mr Williams would not have agreed to do so unless it was to recover something of real significance.

[10] Page 12. Mr Williams said to an unknown male: “Royce [meaning Mr Duncan] can try to be the fucken man mate but I, when I get time to take you guys out, two grand each okay. Shaun? Do you want me to do that?” This has relevance

to later enquiries by Mr Duncan of Mr Williams about a missing sum from the total recovered from Bonnieglen Road.

[11] On Friday, 24 September 2010, there were a number of conversations between Mr Duncan and Mr Williams and Mr Duncan and a person named Zack. These conversations are largely related to Mr Duncan’s concern that a sum of $5,000 had gone missing. I am satisfied that this is a sum that had gone missing from a larger sum that had been recovered from Bonnieglen Road by Mr Williams and his associate (who may have been Zack). Mr Williams, in particular, was seeking to explain how it could have gone missing. It is clear beyond reasonable doubt that Mr Williams is explaining that it could have gone missing by getting separated from a larger sum. It is a reasonable inference that Mr Williams was trying to find a plausible explanation for the missing money when Mr Williams may have already paid it to others. It is unnecessary to reach any definitive conclusion in that regard. But this ties in with the conversation noted in the preceding paragraph.

[12] Mr Duncan’s enquiries of Mr Williams were pressing. This led to a critical conversation between Mr Duncan and Mr Williams recorded at pages 32-36. At page 34 Mr Duncan said, amongst other things:

That 5 grand pile was meant to be in that fucken thing. God knows you know, I don’t know whether you fellas have fucken – or she’s gone and helped herself to it prior to that, I don’t know anymore. [A reference to Mr Duncan’s wife who lived at Bonnieglen road.] I know there was a five hundred K fucken pile in that bag mate when it went.

Mr Williams responded:

Yep so did I. I know for I, I, I vouch for you mate I fucken, I’m the one who

fucken even said to you. You know what I mean?

[13] This, put into its full context, being all of the preceding discussions not just between Mr Duncan and Mr Williams but between each of them and other people, satisfies me beyond reasonable doubt on the point in issue. Further things were said in this conversation, following what has just been quoted, which reinforce the conclusion that Mr Williams and Mr Duncan were talking about Mr Williams’ visit to the property on 21 September.

[14] There are some other issues as to what happened to the money after it had been recovered. These are not relevant to the disputed fact relevant to sentencing – whether Mr Williams recovered $500,000. It is for this reason I have not considered it necessary to discuss some of the other evidence referred to, including discussions between Mr Duncan and Ms Clark and Mr Duncan and his mother. It is also not relevant as to why some money went missing. What is relevant is that Mr Duncan said that there should have been a total of $500,000 and Mr Williams confirmed that there was and he, Mr Williams, could only offer some possible explanations as to how $5,000 of it had gone missing.

[15] Mr Bergseng and Mr Lawson understandably emphasised the need for me to be satisfied beyond reasonable doubt on the critical issue. They submitted that there is no sufficient link between the conversations which occurred on 24 September and the entry onto the property by Mr Williams on 21 September. In that regard Mr Bergseng pointed to the fact that the property had been out of Police control from 22

September. Both he and Mr Lawson made submissions to the effect that the matters discussed by Mr Duncan and Mr Williams on 24 September may have related to things that had occurred after the Police cordon was removed, or at least after Mr Williams went to the property on 21 September. There is evidence of people associated with Mr Duncan and Mr Williams going to the property or back to the property after the Police had left. This does not raise a reasonable doubt in relation to the matters I have already discussed to the essential effect that $500,000 was removed on 21 September. In expressing that conclusion I have had full regard to Mr Lawson’s submission that if there are conflicting inferences available, then a reasonable doubt remains.

[16] In addition to my conclusion from the primary evidence, there are reasonable inferences from other evidence which reinforces the primary conclusion. There is, for example, and importantly, Mr Williams’ discussion at page 12 with the unknown male. This was on 21 September at 03:35. This was very soon after Mr Williams had got back from Bonnieglen Road. He has got money. He is not going to be pushed around by Mr Duncan. He is going to give associates “two grand each”. There is nothing in the evidence between the admitted entry onto the property on 21

September, and the admitted removal of items, and the discussion of $500,000 on 24

September, to give rise to any reasonable doubt that the discussion on 24 September related to anything other than what had been removed on 21 September.

[17] Sentencing on this charge will accordingly proceed on the basis that the course of justice was perverted by entering the property after it had been cordoned

_{off by Police and removing $500,000 that was buried there.}

Woodhouse J