R v Murray [2014] NZHC 1349 (16 June 2014)

Last Updated: 8 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-18344 [2014] NZHC 1349

THE QUEEN

v

FRANK WILLIAM MURRAY CURTIS EDWARD YATES BETTY ANNE LLOYD GRANT JAMES DOBBYN

ANTHONY CHARLES DOBBYN DIONNE JEAN RUNDBERG LIANG GUI YE

PHILLIP BANCROFT YANWEI DU (AKA MELIA DU)

Hearing:	12 June 2014
Counsel:	BD Tantrum and RK Thomson for Crown CB Wilkinson-Smith and HF Brown for Murray L Freyer and JC Harder for Yates PL Borich and C Merrick for Lloyd BL Sellars for Grant Dobbyn SJ Bonnar for Anthony Dobbyn PJ Kaye and RAB Samuel for Rundberg GC Gotlieb and M Kan for Ye MJ Dyhrberg and NS Leader for Bancroft RJ Earwaker and FJ Iggulden for Du
Judgment:	16 June 2014
Reasons:	16 June 2014

_{JUDGMENT OF BREWER J}

R v FRANK WILLIAM MURRAY CURTIS EDWARD YATES BETTY ANNE LLOYD GRANT JAMES DOBBYN ANTHONY CHARLES DOBBYN DIONNE JEAN RUNDBERG LIANG GUI YE PHILLIP BANCROFT YANWEI DU (AKA MELIA DU) [2014] NZHC 1349 [16 June 2014]

Introduction

[1] On 16 June 2014, following counsel’s addresses and before my summing-up, I discharged Mr Ye and Ms Du on all counts against them in the indictment. I also discharged Mr Anthony Dobbyn on count 18. I now give my reasons.

Mr Ye and Ms Du

[2] Mr Ye applied to be discharged at the close of the Crown case. I concluded:¹

Notwithstanding my view that the evidence against Mr Ye is not strong, I conclude that it is a matter for the jury to decide whether, putting all of the evidence together and seeing it in context with the activities of Mr Murray and Mr Bogue, the jury can be sure of his guilt.

[3] At the conclusion of counsel’s addresses, I was able to see the evidence in full context. I decided that the jury, properly directed, could not reasonably convict Mr Ye. I reached the same decision in respect of the case against Ms Du.²

[4] Count 4 of the indictment charged Mr Ye and Ms Du with supplying pseudoephedrine to Mr Frank Murray on or about 21 August 2012. The Crown’s case relied solely on inferences to be drawn from intercepted communications not involving either accused. Mr Tantrum suggested to the jury an analysis of the communications to the effect that Mr Murray obtained pseudoephedrine from Mr Ye, and possibly Ms Du. However, given the relationship between Ms Du and Mr Ye, Mr Tantrum submitted that Ms Du was a party to the supply of pseudoephedrine whether or not she was actually present.

[5] The first, and crucial, point was whether there was evidence from which a jury could reasonably conclude that a person referred to only as “the driver” was Mr Ye.

[6] The evidence is that Mr Ye was referred to by Mr Murray, in particular, as

_{“the driver”. But, as Mr Gotlieb submitted, there is evidence not only that there}

¹ _{R v Murray & Ors [2014] NZHC 1233 at [82].}

² Both Mr Ye and Ms Du applied to be discharged pre-trial. Toogood J declined to do so:

R v Bogue & Ors [2014] NZHC 826.

were other drivers but that there were other suppliers of pseudoephedrine. It would also seem that the driver on this occasion delivered more of whatever drug it was than was expected and so Mr Murray wanted Mr Bogue to find some more money. This would have required Mr Ye, who speaks very little English, to have been familiar with Mr Bogue and be able to deal with him.

[7] Further, it is not at all clear that on this occasion “the driver” was accompanied by anybody. The evidence is that Ms Du was the dominant person in her relationship with Mr Ye. This adds weight to the reasonable possibility that the driver being talked about was not Mr Ye.

[8] Additionally, despite the opinion of Detective Sergeant Sowter, there is no convincing evidence that what was supplied by the driver was pseudoephedrine as opposed to some other drug or precursor substance. The only piece of evidence was reference to “a 9” or a “90”. If this meant $9,000 (as Detective Sergeant Sowter thought it did) then that would be consistent with the street price of a set of Contac NT. This is speculative.

[9] If it would be unreasonable for the jury to find count 4 proved against Mr Ye then it would also be unreasonable to find it proved against Ms Du.

[10] The remaining counts (counts 10, 19 and 30) also allege the supply of pseudoephedrine to Mr Frank Murray. The evidence is clear that on the occasions alleged Ms Du, driven by Mr Ye, met Mr Murray. The problem for the Crown is that the evidence is also clear that there was an amorous relationship between Ms Du and Mr Murray. On the occasions that they met, he would book into a motel and Ms Du would spend the night with him. On the last occasion, around 1 October 2012, she spent three nights in a row with him.

[11] There is no evidence other than Ms Du’s association with Mr Frank Murray that would found drugs charges:

Neither Mr Ye nor Ms Du speak in drugs code

Neither was found with any drugs or anything associated with drugs

Neither had signs of unexplained wealth

None of the intercepted communications between co-conspirators mention them explicitly in the context of furthering the conspiracy. There is no talk of

_{quantity or prices, for example. There are simply references to meetings}

Covert surveillance of the pair does not show anything that could be

_{interpreted as a handing over of drugs}

Telephone conversations between Ms Du and Mr Murray evidence an

_{affectionate relationship, and only that}

[12] There was one occasion where Mr Bogue, accepted to be a prolific dealer in methamphetamine and a co-conspirator of Mr Murray, showed – through the sending of an innocuous text – that he had the number of the cellphone shared by Mr Ye and Ms Du. But that can raise nothing more than a suspicion by itself.

[13] Against this background, I concluded that the jury, properly directed, could not be sure that the relationship between Ms Du and Mr Murray went beyond an amorous relationship. Mr Ye’s association with Ms Du was simply as a driver and so if the charges against Ms Du cannot stand, neither can they stand against Mr Ye.

Mr Anthony Dobbyn

[14] Count 18 is an alternative count. It alleges that Mr Anthony Dobbyn and his brother, Mr Grant Dobbyn, permitted premises at Wright Road, Matakana to be used for the purpose of manufacturing methamphetamine. The property is owned by Mr Grant Dobbyn and one of his sons. The Crown’s case is that Mr Anthony Dobbyn had sufficient association with the premises so as to be able to exercise the degree of control required for the charge.

[15] The evidence does not support the Crown’s proposition. Although

Mr Anthony Dobbyn gave the address and telephone number to the Police as his

address and telephone number, it seems clear from the evidence that in fact he led an itinerant lifestyle. He travelled and lived out of his van. There was another address at which he stayed with a female partner. The evidence of his nephews is to the effect that even when he was staying at the address he slept in his van. Certainly, there was no sign of Mr Anthony Dobbyn occupying any room in the address when it was searched by the Police.

[16] Against this background, a jury, properly directed, could not reasonably find that Mr Anthony Dobbyn had the degree of control over the premises such that it was in his power to give or withhold permission to make methamphetamine there.

Conclusion

[17] I discharged Mr Ye and Ms Du on count 4 because there was insufficient evidence to identify them as being the driver and/or “friends” being discussed by the other parties. I discharged them on counts 10, 19 and 30 because there was insufficient evidence to displace the inference that Ms Du’s relationship with Mr Frank Murray was amorous but not drugs related.

[18] I discharged Mr Anthony Dobbyn on count 18 because there was insufficient evidence that he was able to give or withhold permission for the use of the Wright

_{Road, Matakana premises to manufacture methamphetamine.}

Brewer J