Gunbie v R [2014] NZHC 1086 (21 May 2014)

Last Updated: 5 August 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-225 [2014] NZHC 1086

BETWEEN	STEPHEN BRENT GUNBIE Applicant
AND	THE QUEEN Respondent

Hearing:	16 April 2014
Counsel:	J Kovacevich for Applicant A Pollett for Respondent
Judgment:	21 May 2014

JUDGMENT OF KATZ J (Section 347 application)

This judgment was delivered by me on 21 May 2014 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Crown Solicitor, Auckland

_{Counsel: J Kovacevich, Auckland}

GUNBIE v THE QUEEN [2014] NZHC 1086 [21 May 2014]

Introduction

[1] Mr Steven Gunbie is one of a number of defendants who were arrested and charged with various offences following the termination of a police operation, codenamed “Operation Jericho”. Operation Jericho targeted an organised crime syndicate that police allege was involved in the manufacture, distribution and sale of the class A controlled drug methamphetamine.

[2] The indictment currently before the Court includes a total of 47 counts, against seven different accused. Mr Gunbie is charged with three counts¹ of manufacturing methamphetamine.²

[3] Mr Gunbie says that there is insufficient evidence on which a properly directed jury could convict him on any count. He applies under s 347 of the Crimes Act 1961 (“Act”) to be discharged on all three counts.

Relevant legal principles

[4] The relevant legal principles are set out in Parris v Attorney-General³ and R v

Flyger.⁴ In Parris v Attorney-General the Court said:

[13]... There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to the same thing.

[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pre-trial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide.

¹ _{Counts 7, 12 and 14.}

2. An offence under the Misuse of Drugs Act 1975, s 6(1)(b) that carries a maximum penalty of life imprisonment.

³ _{Parris v Attorney-General [2004] 1 NZLR 519, (CA).}

⁴ R v Flyger [2001] 2 NZLR 721.

[5] The issue is accordingly whether there is sufficient evidence on which a properly directed jury could reasonably convict Mr Gunbie. As the Court of Appeal observed in Parris v Attorney-General, unless the case is clear-cut in favour of the accused, it should be left for the jury to decide.

Key Issues

[6] The essence of the Crown case is that Mr Gunbie was involved in a common enterprise, with some of the other defendants, to manufacture methamphetamine. As in commonly the case for this type of offending, the Crown’s case relies heavily on transcripts of cellphone text messages. Some of the text messages are allegedly to or from Mr Gunbie. Others are said to refer to him, either directly or by implication.

[7] Counsel for Mr Gunbie do not directly challenge attribution of certain text messages from Mr Gunbie, although he did submit that it is possible that other persons may have also sent text messages from Mr Gunbie’s cellphone. For present purposes, however, based on the attribution evidence that the Crown intends to adduce at trial, I will assume that the texts sent to and from Mr Gunbie’s phone are attributable to him.

[8] The Crown also relies on R v Messenger⁵ and the co-conspirator’s exception to the hearsay rule. Thus, the statements made or acts done by one or more of the alleged offenders in furtherance of the common enterprise, in the absence of Mr Gunbie, are admissible against him. For present purposes at least, counsel for Mr Gunbie did not argue to the contrary. I proceed on that basis.

[9] The Crown says that it will be open for the jury to draw certain inferences as to Mr Gunbie’s involvement in methamphetamine manufacturing from the various text messages before the Court. Counsel for Mr Gunbie submitted, on the other hand, that the meaning of the text messages is very much open to interpretation. That may well be the case. It is not, however, sufficient in itself to justify discharging Mr Gunbie under s 347. At a s 347 hearing, the evidence must be given

the construction most favourable to the Crown.⁶ If the text messages are “open to interpretation,” and one reasonably open interpretation is consistent with a finding of guilt on a particular count, then the issue must be left to the jury to determine.

[10] The Crown further submits (and Mr Gunbie did not dispute) that for the purposes of this s 347 application, it is sufficient for the Crown to adduce evidence that demonstrates, at the very least, party liability under s 66(1)(b)-(d) of the Act. I accept that submission.

[11] Accordingly, the issue is whether, in respect of each count, there is sufficient evidence on which a properly directed jury could reasonably convict Mr Gunbie of (at the very least) being a party to the manufacture of methamphetamine. In other words, is there evidence on which the jury could reasonably find that Mr Gunbie aided (assisted, helped or gave support to), abetted and incited (urged on, instigated or encouraged), or counselled (instigated) the manufacture of methamphetamine.

[12] I will first outline some of the key “contextual” evidence relied on by the

Crown before turning to consider each of the three counts against Mr Gunbie.

The Crown case – contextual evidence

[13] First, the Crown relies on evidence relating to other counts in the multi-party indictment, not specifically involving Mr Gunbie, as “setting the scene”. This evidence is said to provide contextual evidence by demonstrating the purpose and modus operandi of the methamphetamine manufacturing group of which Mr Gunbie is alleged to be a part. This broader contextual evidence also includes evidence as to the use of coded terminology to disguise the group’s activities.

[14] In particular, the Crown submits that the evidence in relation to Count 1 (not involving Mr Gunbie) provides the necessary starting point to put the group’s activities into context. The relevant background commences with an explosion at a residential address. The Crown relies on the following evidence in relation to that explosion:

(a) ESR scientist Helen Bodley will confirm that methamphetamine manufacture had taken place at the address.

(b) Specialist fire investigator Lynda McHugh will say that the cause of the fire was likely the ignition of highly volatile and combustible liquid chemicals, as part of the process of manufacturing methamphetamine.

(c) Clandestine Laboratory Response team member Deanne Burrell will give evidence that a parr-bomb (an item used in the manufacture of methamphetamine) was among the items located.

(d) A large number of text messages were exchanged between various accused which, the Crown allege, relate to the group’s manufacture of methamphetamine and the explosion at the premises.

(e) The evidence of an expert police officer will be called as to the coded terms used in the text messages that the Crown will say were an attempt to disguise the relevant drug dealing activities. The Crown will submit that it is clear from text exchanges, particularly in light of the ESR evidence, that the purpose for which the premises were used on 1 December 2011 was to manufacture methamphetamine.

[15] When considered in context, the Crown submitted that the evidence will lead to the irresistible inference that Messrs Afakasi, Davoren, Silliloto, Kaukasi and a number of others were, during this period, continuously and persistently manufacturing methamphetamine.

[16] The Crown will further submit, based on the text messages, that one of the main protagonists in relation to Count 1, Mr Davoren, is closely linked to Mr Gunbie. In this respect the Crown relies on a number of direct text communications between the two men, as well as references to Mr Gunbie (often referred to as “gumby”) in communications with other members of the group.

[17] Against this background I now turn to consider the three specific counts against Mr Gunbie.

Count 7 – Charge relating to Clan Lab 5 (6-8 January 2012)

[18] The Crown alleges that Messrs Gunbie, Afakasi, Davoren, Kaukasi and

Carnachan manufactured methamphetamine between 6 and 8 January 2012.

[19] The Crown relies on the following specific evidence in relation to Count 7. Given the alleged use of “coded language” in the text messages, I refer where appropriate to what the Crown alleges the coded words actually mean, rather than the words themselves. On their face there could be an innocent explanation for a number of the text messages. Obviously, it will ultimately be for the jury to determine the true meaning of the text messages. For present purposes, however, I take the interpretation of the text messages that is most favourable to the Crown.

[20] If the interpretation of the text messages advanced by the Crown were accepted by the jury, then the evidence before the jury will, in summary, be as follows:

(a) Messrs Davoren, Afakasi and Kaukasi were involved on 6 January

2012 in obtaining the necessary precursor substances for manufacturing methamphetamine.

(b) At 12:09 pm that day Mr Davoren texted Mr Carnachan seeking to obtain precursor substances. (The Crown submits that this communication is significant evidence against Mr Gunbie, because it demonstrates that Mr Carnachan is working with Mr Davoren and others. Shortly before this, at 12:04 pm, Mr Gunbie had been in touch with Mr Carnachan to say that he was waiting for his daughter to get dropped off).

(c) Messrs Davoren and Kaukasi met on the afternoon of 6 January at

Mr Gunbie’s address on Sharp Rd in Warkworth at about 4.00pm.

(d) Mr Kaukasi contacted Mr Davoren to say that the pseudoephedrine extraction process was almost completed and that they would be able to complete the manufacture of methamphetamine the following day (5.48 pm text from Mr Kaukasi to Mr Davoren).

(e) Shortly afterwards, Mr Davoren texted his girlfriend to say he is in Warkworth “working”. (The Crown’s expert evidence will be that “working” is a common term used throughout the methamphetamine industry to denote manufacture).

(f) At 5.57 pm Mr Kaukasi texted Mr Davoren that “the dude that owns the place is on a curfew, no good there during the night, but through the day is all good”. The Crown’s evidence is that Mr Gunbie was on bail at that time, with a night time curfew, at an address on Sharp Rd, Warkworth. Police were conducting bail checks. The Crown will ask the jury to infer that the reason Mr Kaukasi said that the address was no good at night time is that they didn’t want to risk manufacturing methamphetamine at a time when there was a risk that the police would arrive and conduct a bail check on Mr Gunbie.

(g) There are ongoing efforts on the evening of 6 January 2012 and the morning of 7 January 2012 by Messrs Davoren, Kaukasi and Afakasi to obtain further precursor substances to complete the manufacturing process.

(h) At 9:44 am on 7 February 2012, Mr Carnachan texted Mr Davoren and says he is waiting on certain precursor substances. Shortly afterwards, Mr Carnachan texted Mr Gunbie and said “My bro, I’m ready”. The Crown submitted that this demonstrates that, within the space of 25 minutes, Mr Carnachan communicated with Mr Davoren (an allegedly prolific manufacturer of methamphetamine) then texted Mr Gunbie, who lived in Warkworth, who told Mr Carnachan he was “ready”. The Crown will ask the jury to draw the inference from this exchange that Mr Gunbie was contacting Mr Carnachan to tell him

that he was ready for Messrs Davoren and Kaukasi to go to his address to continue manufacturing methamphetamine.

(i) At 11.24 pm Mr Davoren contacted Mr Kaukasi and informed him that he was heading to Sharp Rd, Warkworth (Mr Gunbie’s address). Mr Kaukasi replied that he was watching the parr bomb (an item used in the manufacture of methamphetamine) while the manufacturing reaction process was taking place.

(j) At approximately 11.35 pm Messrs Davoren and Kaukasi discussed manufacturing a second batch of methamphetamine at Mr Gunbie’s address the following day. An exchange took place regarding further chemicals required for the manufacturing process.

(k) At 1:40 am on 9 January 2012, Davoren texted his then partner, to say that he was doing his “last bit of concrete” and that he was nearly done. Later that morning (at 11:45 am) Mr Davoren texted Mr Afakasi to say that he just woke up and didn’t finish until that morning. The jury will be asked to infer that Mr Davoren was telling Mr Afakasi that he had just woken up and didn’t complete the manufacture until that morning.

(l) The last text message was said to further evidence Mr Gunbie’s involvement. Mr Davoren texted Mr Carnachan and said to tell “gumby” (alleged reference to Mr Gunbie) to take them to the fulla that sold him that “shit” because it was no good. The Crown will ask the jury to infer that, when this text is viewed in its overall context, that certain precursor substances had been sourced from Mr Gunbie which had been “no good”.

[21] The Crown submits that the jury will also be entitled to use the evidence against Mr Gunbie in relation to Counts 12 and 14 (as propensity evidence) to assist them when determining whether or not Mr Gunbie was involved in manufacturing

methamphetamine with Mr Davoren and others during the period 6 to 8 January

2012 (Count 7).

[22] To summarise, then, it would be open (on a best case scenario) to the jury to infer from the particular text messages set out above and others in the transcript that:

(a) Mr Gunbie was closely associated with Mr Davoren, a persistent manufacturer of methamphetamine throughout the relevant period.

(b) Between 6 and 8 January 2012 Messrs Kaukasi and Davoren manufactured methamphetamine at Mr Gunbie’s address in Warkworth, with his knowledge and support.

(c) Mr Gunbie was involved in sourcing precursor substances for use in the manufacturing process.

[23] It necessarily follows, in my view, that there is sufficient evidence on which a properly directed jury could convict Mr Gunbie on this count. I therefore dismiss Mr Gunbie’s application for discharge under s 347 of the Crimes Act.

Count 12 – “Clan Lab 9” (18 to 20 February 2012)

[24] This count relates to the alleged manufacturing of methamphetamine during the period 18 to 20 February 2012, although I note that the Crown foreshadows its intention to seek an amendment to the indictment to change 20 February 2012 to 21

February 2012. I proceed on that basis. The defendants to this count are Messrs

Gunbie, Davoren, Keresoma, Kaukasi, Carnachan, Harvey and Sililoto.

[25] The Crown alleges that during this period methamphetamine was manufactured at a residential property at 46 Ellice Road, Glenfield, Auckland. It will call various evidence to establish this, including:

(a) items found during a search of the address on 18 May 2012;

(b) ESR evidence that methamphetamine (and pseudoephedrine) were detected on items located at the address; and

(c) text message communications between various defendants regarding the manufacture of methamphetamine at that address during the period 18 to 21 February 2012.

[26] As with Count 7, I refer where appropriate to what the Crown alleges certain “coded” words actually mean, rather than the words themselves. Further, I take the interpretation and inferences most favourable to the Crown.

[27] On this basis, the text messages could be interpreted by the jury as establishing that at approximately 9.00 pm on 18 February 2012, Mr Harvey (the tenant of 46 Ellice Road) communicated with Mr Davoren. At 9:43 pm Mr Harvey sent a text message to an unknown person saying “Ellice busy tomorrow and half Monday”. Text messages between other defendants (including in particular text messages sent to and from Mr Davoren) are consistent with methamphetamine manufacturing activity taking place during that period and, further, with some problems arising during the manufacturing process, as evidenced, for example, by text messages Mr Davoren sent his partner at approximately 4.00 am on 21 February

2012.

[28] The specific evidence relied on as establishing Mr Gunbie’s involvement in methamphetamine manufacturing at the Ellice Street address is:

(a) On 21 February 2012 at 5:26 am Mr Gunbie received a text message from Mr Davoren which said “whats up cuz your sister [Renee Gunbie] reckons she can cum and check this out; we had a little drama here”.

(b) At 6:00 am Mr Gunbie responded and said “we will come down about

9 after the kids go to school”. Mr Davoren replied “yes sweet bro”.

(c) At 9:00 am, Mr Gunbie texted his sister, Renee Gunbie, and said

“I will come and get you”. Renee Gunbie responded “all good”.

(d) Mr Gunbie then told Mr Davoren that he was on his way and that he would buzz when he comes off the motorway.

(e) There are then various further conversations between Messrs Gunbie and Davoren, and between Mr Gunbie and his sister, Renee.

(f) At 11:06 am Mr Gunbie told Mr Davoren that he was 15 minutes away.

(g) At 11:12 am Mr Gunbie said he was at “macaz” (McDonalds) in Wairau (Wairau Park). At 11:37 am Mr Davoren told Mr Gunbie to hold up and that he would not be long. Mr Davoren then received a text message from Mr Kaukasi saying “where is “gumby” (reference to Mr Gunbie). Immediately after, Mr Gunbie texted Mr Davoren and said that he’s here.

(h) At 11:41 am Mr Davoren texted Mr Gunbie and gave him directions to 46 Ellice Street. Mr Gunbie said he would be there “in 5”.

(i) At 11:46 am Mr Davoren said to Mr Kaukasi to keep the door up for

“kumby” (again, reference to Mr Gunbie). A few minutes later, at

11:51 am Mr Gunbie texted Mr Davoren and said “that didn’t work cuz”. The Crown will ask the jury to infer that Mr Gunbie and his sister have gone to 46 Ellice Road to assist in the manufacture of methamphetamine as Mr Davoren was having problems. Whatever Mr Gunbie and his sister did to assist, didn’t work.

(j) Mr Gunbie and Mr Davoren then spoke over the phone

(11:52 am “call me cuz”).

(k) At 3:21 pm Mr Gunbie texted Mr Davoren and said that his sister had a plan and that they would wait around. Mr Davoren said “sweet”, and that he would text him.

(l) At 4.28 pm Mr Gunbie texted Mr Davoren and said that he had to go because his kids had to be picked up. Mr Davoren replied that he would come up to his place later.

[29] In my view it will be open to jury, on the ESR and text message evidence, to conclude that methamphetamine was being manufactured at the Ellice Road address during the period 18 to 21 February 2012, but that something went wrong with the manufacture during the early hours of 21 February 2012. If the jury reach that conclusion, it will then be open to them to infer from the text messages involving Mr Gunbie that he visited the Ellice Road address on 21 February 2012, together with his sister, to assist with the manufacture, including in particular trying to remedy the problems that had arisen.

[30] I conclude that there is sufficient evidence on which a properly directed jury could convict Mr Gunbie on this count and I therefore dismiss his application for discharge under s 347 of the Crimes Act.

Count 14 – “Clan Labs 10 and 11”

[31] This charge relates to the alleged manufacture of methamphetamine between

22 and 23 February 2012 at Mr Gunbie’s address near Warkworth.

[32] The Crown case is that Mr Carnachan arranged with Messrs Davoren and Gunbie to manufacture methamphetamine at Mr Gunbie’s address. Mr Carnachan checked with Mr Gunbie as to what equipment he already had (namely fans). Mr Carnachan told Mr Davoren, who the text messages indicate was still in Auckland finishing up the manufacturing process that is the subject of Count 12, that they needed his help. Mr Davoren said he would come.

[33] In relation to Mr Gunbie’s involvement, the Crown rely in particular on the following evidence (again, interpreting the text messages in the way most favourable to the Crown):

(a) On the morning of 22 February 2012 Mr Carnachan texted Mr Gunbie and asked how many fans he had. Mr Gunbie responded that he had one big one and a heater. Mr Carnachan asked Mr Gunbie to pick up two fans for him from Mitre 10 because Mr Carnachan had no money to pay for them. (Erina Mayo will give evidence that electric fans may be used to dissipate fumes during the extraction of pseudoephedrine and the manufacture of methamphetamine). At 11:16 am, Mr Carnachan said that he was on his way.

(b) At about 2.23 pm Mr Carnachan contacted Mr Davoren and asked him to come to Mr Gunbies address because “we need your help”. At

2:29 pm , Mr Davoren advised that he was “coming now” and separately texted his partner to tell her he was he was heading up to Warkworth.

(c) At 3:02 pm Mr Davoren texted Mr Afakasi to say that the “wata fucked [their] shit up” and that he was waiting for the “1 arm queen” to turn up and fix it. This is said to be a reference to Renee Gunbie, Mr Gunbie’s sister, who apparently has only one arm.

(d) At 3:18 pm Mr Davoren told Mr Carnachan that he was nearly there.

[34] I accept the Crown submission that, at the very least, and for the purposes of the s 347 application, the evidence is sufficient for a properly directed jury to conclude that Mr Gunbie is guilty of permitting his premises to be used to manufacture methamphetamine. If so, he would be a party to the manufacture of methamphetamine. I accordingly dismiss Mr Gunbie’s s 347 application in relation to this Count.

Result

[35] Mr Gunbie’s application to be discharged under s 347 of the Act in respect of

_{counts 7, 12 and 14 is dismissed.}

Katz J