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The Queen v Wong [2009] NZCA 440 (28 September 2009)

Court of Appeal of New Zealand

The Queen v Wong [2009] NZCA 440 (28 September 2009)

Last Updated: 7 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

v

Hearing: 18 August 2009

Court: Arnold, Panckhurst and Miller JJ

Counsel: F C Deliu and R Zhao for the Appellant
M D Downs for Crown

Judgment: 28 September 2009 at 11.30 am

The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] This is an appeal against conviction and sentence on one charge of importing 8.9kg of methamphetamine and another of possessing it for supply, both on or about 8 July 2004.

Background

[2] The Crown case was that the appellant led a group which imported large quantities of methamphetamine in lighting fixtures (lava lamps) on several occasions. The shipment in July 2004 contained, in liquid form, the equivalent of 8.9 kilograms of usable methamphetamine. Customs intercepted it. The drug having been identified, a controlled delivery was made to Mr Song Sheng at an address in Chelsea View Road, Birkenhead. On further investigation, Customs realised that two earlier shipments of lava lamps had been made to a different address in April and May, with Mr Song accepting delivery on both occasions.
[3] The appellant stood trial for the first time in June 2006 with three co-accused, Chi Wai Fung, Song Sheng, and Harry Yu. There were seven counts, six alleging importations in April, May and July 2004. The appellant was also charged, alone, with money laundering between April and July 2004. Mr Song was said to be the recipient of the drugs, while Messrs Yu and Fong were middlemen. The appellant was not directly involved in handling the drugs, and the case against him was circumstantial.
[4] At the 2006 trial, the appellant was convicted of importing methamphetamine, supplying it, and possessing it for supply in relation to the May and July importations. He was also convicted of money laundering. The co-accused were acquitted, possibly because the jury were not sure that they knew the substance they were importing was methamphetamine. Winkelmann J sentenced the appellant to 17 years imprisonment with a minimum period of eight years. An appeal was dismissed, but a new trial was ordered in the Supreme Court because the jury had been reduced to ten and there were no exceptional circumstances to warrant a trial with fewer than 11: R v Wong [2008] 3 NZLR 1.
[5] Following a series of appeals and pre-trial applications, the retrial was held before Potter J on 24 February 2009. The appellant was charged with importing and supplying methamphetamine on or about 8 May 2004, with importing methamphetamine and having it in his possession for supply on or about 8 July 2004, and with money laundering between 23 April 2004 and 8 July 2004. He represented himself but amicus, Mr Dacre, was appointed to assist him. He was acquitted of the May charges and money laundering but convicted of the July charges. Potter J sentenced him to 14 and a half years imprisonment, and imposed a minimum period of imprisonment of seven and a half years.

The appeal

[6] On appeal, the appellant advanced a miscellany of grounds through his counsel, Mr Deliu. In relation to conviction, Mr Deliu submitted that the verdict was unsafe because the jury had reached a deadlock, there was insufficient evidence on the drug counts, the money laundering allegation was supported by no evidence, alternatively ought not to have been tried with the drug counts, the verdicts were inconsistent, inadmissible evidence was led, and the trial was unfair. In relation to sentence, he submitted that the minimum period of imprisonment was manifestly excessive.
[7] These grounds rested on familiar principles but were developed at unnecessary length in 62 pages of submissions. In the end there was only one point of substance in the appeal. We now turn to that point before dealing more briefly with the others.

Unsafe verdict

[8] During the summing up the Judge instructed the jury that their verdicts must be unanimous. After the jury retired, Mr Dacre asked the Judge, on the appellant’s instructions, to instruct the jury that each of them had a vote and they could “stick to their own vote”, meaning that they were entitled to dissent. The Judge refused to do so.
[9] After the jury had deliberated for approximately seven hours the foreperson sent the Judge a note advising:

We have finished deliberating and reached a decision.

[10] The Judge asked the Registrar to inquire of the foreperson what was meant by that communication, and the foreperson responded with the following note:

We are unable to reach a unanimous verdict on any of the five charges.

Any further effort would result in bullying.

[11] The Judge then heard from counsel for the Crown and Mr Dacre. Having consulted the appellant, Mr Dacre asked her to discharge the jury and order a retrial. The Judge chose instead to give the jury a Papadopoulos direction. In reasons dated 12 March she stated that she did so for several reasons: the jury had been deliberating for seven hours but that was not a long period given the number of charges, the circumstances and extremely detailed nature of the Crown case, which included many documents, and the need to consider a source and a dispositions statement which assessed the appellant’s unexplained income over a period of six months; the jury had begun its deliberations at 12.45pm on 10 March and were sent home for the evening at 4.50pm after a lunch break and two cigarette breaks; and the first communication from the jury was conveyed after just three hours of deliberations following their return at about 10am on 11 March. There had been no previous indication of problems with the jury. Lastly, she appears to have accepted the Crown’s submission that as it was a retrial, finality was desirable. With respect to the content of the direction, she stated:

I considered that the content of the Papadopoulos direction referring to a duty to listen carefully to one another and including the caution that no juror should give in merely for the sake of agreement or to avoid inconvenience, would provide appropriate guidance and direction against any undue pressure that any juror or jurors might seek to exert.

[12] The Papadopoulos direction followed the conventional form set out in R v Accused (CA 87/88) [1988] 2 NZLR 46 at 59. The Judge began by referencing it to the jury communications. She stated:

Members of the jury, I have received your communications and I do understand that you have not been able to reach a verdict so far. That sometimes happens. It is no reflection on you. I have the power after you have been in retirement for four hours, which you have, to discharge you from giving a verdict, but not unless I am satisfied that should be done. Judges always hesitate to discharge a jury because it usually means that the case has to be tried again before another jury and experience has shown that juries are often able to agree in the end if more time is taken.

Each of you has sworn or affirmed that you will try this case to the best of your ability and give your verdict according to the evidence. It is important that you do your best to accept that responsibility and not to pass it over to another jury. You are here as representatives of the community with the responsibility on behalf of the community of trying to reach a collective decision of all of you.

One of the strengths of our jury system is that each member takes into the jury room his or her individual experience and wisdom and is expected to judge the evidence fairly and impartially in that light. You are expected to pool your views of the evidence and you have a duty carefully to listen to one another. Do remember that a view honestly held can equally honestly be changed, so within the oath there is scope for discussion, argument and for give and take. That is often the way in fact in which in the end unanimous agreement is reached. But of course no one should be false to his or her oath or affirmation. No one should give in merely for the sake of agreement or to avoid inconvenience.

If in the end you honestly cannot agree after trying to look at the case calmly and objectively and weighing carefully the opinions of others, you must say so. If regrettably that is the final position you will be discharged, and in all probability there will have to be a new trial before another jury. Therefore I am asking you, as is usual in such cases, to be good enough to retire again and see whether you can reach a unanimous verdict in the light of what I have said. I will enquire shortly of you, after you have had some further time to consider these matters.

[13] The direction was given at 2.25pm and the Judge was advised at 3.20pm that verdicts had been reached.
[14] Because of the earlier communications the Court interpreter, Sai Law, was watching the jury closely during the verdicts for signs of dissent. Sai Law has deposed that after the guilty verdicts were read the appellant’s mother broke into a loud wail. The foreperson began to cry and dab at her eyes. Mr Deliu did not suggest that the registrar failed to inquire whether the verdicts were unanimous, or that the foreperson failed to confirm that they were. The Judge did not poll the jury.
[15] We asked the Judge for a report on the jury verdicts. She advised that:

The Foreperson confirmed the verdicts were unanimous. She delivered the verdicts without hesitation in a clear, firm voice.

There was no indication of dissent from any member of the jury. I closely observed the jury while the Foreperson was delivering the verdicts on the five charges and as she confirmed that the verdicts were unanimous.

[16] Mr Deliu submitted that the Judge erred in a variety of ways: she ought to have taken a verdict as soon as the jury advised her that they had reached a decision, without making a further inquiry of them about what the communication meant; she ought to have discharged them as soon as she learned there was a risk of bullying; a generic Papadopoulos direction was insufficient, in that it was at least necessary to inquire of the jury to determine whether there was a basis for discharge; the Judge failed to direct the jury that they could “hold their votes”; the Judge failed to ask the foreperson why she was distressed; in the circumstances, the jury ought to have been polled; and, lastly, the Judge failed to issue a “report via a Minute” about these matters, although she gave written reasons for declining a discharge and giving a Papadopoulos direction.
[17] The question is whether there is a real risk of a miscarriage of justice. That question turns on a single issue: whether the Judge was correct to give a conventional Papadopoulos direction in the circumstances. There can be no doubt that the Judge was correct to clarify the first communication, since it did not confirm that the jury had reached verdicts. She need not inquire of them about the meaning of their notes; she might have done so as a matter of discretion to put the matter beyond doubt, but such inquiries are fraught with risk that details of the jury’s deliberations will be disclosed. The safer course is often to give a Papadopoulos direction, modified where appropriate to meet the circumstances. Nor was the Judge obliged to poll the jury (R v Papadopolous (No 2) [1979] 1 NZLR 629 at 632-3 (CA)), although that too would put the matter beyond doubt.
[18] The decision to give a Papadopoulos direction is within the discretion of the trial Judge, and the Supreme Court has confirmed that a good deal of latitude is given to trial Judges in the exercise of that discretion: Hookway v R [2008] NZSC 21 at [3] (declining leave). In its judgment in the same case ([2007] NZCA 567), the Court of Appeal held that:

[211] On the basis of the authorities above referred to it is clear that in deciding whether to exercise the discretion to give a Papadopoulos direction to a jury who is having difficulty in reaching unanimity, the focus of the trial Judge must be much wider than the words of the jury note that conveys the advice of the difficulty. The focus must be whether in all the circumstances it is safe for the jury to continue deliberating. If there is a risk of an unsafe verdict in all the circumstances as they are known to exist at the time the decision must be taken, then it is inappropriate for a Papadopoulos direction to be given. On the other hand, if in the circumstances as the Judge knows them to be, he or she concludes that there is still a possibility that consensus can be fairly reached if the jury continues its deliberations, then a Papadopoulos direction may be appropriate.

The Court added (at [212]) that the actual words used by the jury are an important indicator, but not the sole or even the primary one. It follows that the Judge might in the exercise of her discretion give a Papadopoulos direction notwithstanding categorical language used by the jury, if in all the circumstances the Judge believed that consensus might be reached were the jury to continue deliberating.

[19] Central to Mr Deliu’s argument was the proposition that the Judge erred because she exercised a discretion to give a direction before the discretion was available to her. Following Hookway, she ought first to have decided whether there existed a risk of an unsafe verdict in the circumstances. Only if satisfied that there was no such risk could she give a Papadopoulos direction.
[20] The ultimate question, as this Court held in Hookway, is whether in all the circumstances it is safe for the jury to continue deliberating. In a case where the jury report that they have been unable to reach agreement, the Judge is likely to be faced with two options; to discharge them or to give a Papadopoulos direction. She might make that decision by considering whether it is safe for them to continue deliberating with a Papadopolous direction, recognising that while the conventional direction reminds jurors that they should not give in for the sake of agreement, its primary purpose is to urge them to continue to seek consensus. That approach does not differ in substance from what this Court said in Hookway at [211]; if the Judge decided that the point had already been reached where a verdict would be unsafe, the jury would be discharged then and there, without a Papadopoulos direction being given. The Judge in this case correctly approached the decision in that way; see her reasons of 12 March at [14].
[21] We further consider that the Judge was right to ask the jury to continue. In addition to the reasons she gave (summarised above), the note did not indicate that there had already been bullying, merely that the jury were unable to agree at that time and there was a risk of intimidation were they to continue. That distinguishes this case from R v C [2005] 3 NZLR 92 (CA), in which a jury communication stated that the jury had “feelings of intimidation” and were “not functioning correctly”. It is analogous to Hookway itself, in which the jury were given a Papadopoulous direction after advising that they were split 50/50 on the charges and positions were “rock solid”. In both cases, this Court accepted that the trial Judge did not err by asking the jury to continue.
[22] The only further instruction that may well have been added to the conventional Papadopoulos direction was a warning that jurors should not engage in bullying or intimidation of other jurors. That is plainly implicit in the conventional direction but may require emphasis in some circumstances. In R v C this Court held (at [42]) that the direction ought to have been modified to emphasise that no one should join in a decision against their individual judgment or engage in intimidation of other jurors. In that case, however, problems had already arisen within the jury. There was some delay in the note reaching the Judge, and the dinner break intervened. More than three hours elapsed before the Papadopoulos direction was given at 9.25pm. In the meantime the jury delivered another note indicating that some counts were proved.
[23] The Judge in this case thought it unnecessary to go beyond the instruction that no one should be false to an oath or affirmation, and that if in the end the jury could not agree they must say so. The question whether she was wrong must be answered by reference not to the language of the jury communications in isolation but to the whole of the circumstances.
[24] We are not persuaded that the Judge erred in her decision to give a conventional Papadopoulos direction. She made it clear that the direction was given in response to the jury communications, the most recent of which had been received about an hour before the direction, and she cautioned that no juror should give in for the sake of agreement. In contrast to R v C, the jury’s communications did not indicate that problems had already arisen within the jury. They had not been deliberating for long in the circumstances, and they had not been sequestered overnight. The Judge was best placed to assess the situation, and she turned her mind to the issue, deciding that the conventional direction sufficed.
[25] Turning to the verdicts, we observe that jurors commonly become distressed when a verdict is delivered. Here there is no evidence of dissent, and the only evidence of distress is that the wailing of the appellant’s mother triggered the foreperson’s tears after the verdicts were delivered. As this Court noted in R v Accused (1996) 14 CRNZ 516 at 522, jury service is not often an easy or pleasant task, and jurors often experience feelings of stress. There is no particular significance in the time that elapsed between the direction and the verdicts. In the circumstances, we accept Mr Downs’ submission that nothing that happened after the jury’s two communications suggests the jury’s deliberations had gone awry.

Inconsistent/compromise verdicts

[26] Mr Deliu argued that the verdicts were inconsistent, and may have reflected a compromise having regard to the difficulties that the jury were having reaching unanimity. The evidence for the May and July importations was virtually identical, yet the appellant was acquitted on the former but convicted of the latter. That is illogical, especially since the Crown’s theory of the case was that criminality in May might be inferred from conclusions of wrongdoing in July. He noted the Judge did not tell the jury that if they were having difficulty reaching unanimous verdicts on all counts, the Court would accept verdicts on those counts upon which they could agree.
[27] We reject these submissions. Mere inconsistency is not sufficient to justify quashing a conviction: R v H [2000] 2 NZLR 581 (CA). It is for the appellant to explain why no reasonable jury could arrive at the different verdicts. As Mr Downs pointed out, Mr Deliu failed to do so. There is a ready explanation; the July counts were supported by direct evidence of importation, while the May counts depended on an inference drawn from the other importations of lava lamps.

Money laundering

[28] Mr Deliu argued that the money laundering charge, on which the appellant was acquitted, ought not to have been before the jury at all. He ought to have been discharged before trial, alternatively, that count ought to have been severed. Its inclusion caused much prejudice, for it resulted in the Crown leading evidence that the appellant had spent very large sums of money in circumstances where he had no apparent source of income. It is not enough that he spent money, or that he gambled heavily. He submitted that none of the Crown’s evidence actually related to money laundering. In particular, it was necessary that the Crown prove a purpose of dealing with the proceeds of offending or concealing those proceeds in some manner.
[29] The Judge was asked to discharge the appellant on all charges before trial, alternatively to order severance of the money laundering count. In reasons for judgment dated 17 February 2009 she dismissed these applications. She held that evidence of all three importations was admissible to show that the appellant was the person responsible for the July importation. The evidence of the appellant’s modest family fortunes and unexplained income was relevant to show that income was derived from another source, which the jury might infer was the sale of drugs. The timing of some of the expenditure might link the appellant to the May importation. Allegations that the evidence was unreliable or open to question were for the jury to assess.
[30] We reject Mr Deliu’s submissions, essentially for the reasons that appealed to the Judge. The money laundering count was properly joined in the indictment, since all the counts were linked in time and circumstance. The money laundering charge depended on the May importation being proved, as the Crown alleged that it was the proceeds of that offence that were subsequently laundered. The mere fact that the appellant was acquitted of both the May importation and the money laundering charge does not mean that the latter was improperly tried together with the July charges on which he was convicted.
[31] The appellant’s unexplained income was circumstantial evidence supporting the Crown case that he had been responsible for the earlier importations. According to his tax returns he had no taxable income, yet he and his father, whose financial affairs were intermingled with the appellant’s, had some $237,000 of unexplained income between March and September 2004. He also spent very large sums of money in the months preceding July 2004. For example, he bought a Porsche Boxster for $90,000 in May or June, paying for it in $100 bills, and he gambled heavily at the Sky City casino. The Crown alleged that he sold the drugs which were the subject of the May importation, explaining his income around this period.
[32] The same evidence might sustain a conviction for money laundering. Indeed, the Judge recorded in a ruling of 5 March that Mr Wong accepted that the evidence was relevant; his complaint at that time was that the Crown was wrong to include evidence of his father’s expenditure. There was evidence of the May importation, and evidence that in May or June the appellant purchased the Porsche and gambled heavily. Gambling is a means by which cash can be laundered, as the Supreme Court accepted in Wong v R [2008] NZSC 5, a judgment on the present appellant’s application for rehearing of a leave application. We accept that the Crown was required to prove a purpose of concealing the proceeds of the importation (R v Rolston [2008] NZCA 431), but the evidence of what the appellant did is capable of sustaining an inference that he acted with such purpose.

Sufficiency of evidence

[33] Mr Deliu argued that the verdicts were unreasonable because, taken at its highest, the evidence was not sufficient to satisfy the jury beyond reasonable doubt that the appellant was guilty. The case relied on unexplained income and phone contact between the appellant and an intermediary who in turn was in contact with Mr Song.
[34] We reject these submissions. The Crown’s case that the appellant was party to the July importation was circumstantial, but cogent. The Crown relied upon the appellant’s admitted relationship with Mr Fung and Mr Yu, and telephone traffic between the appellant and the intermediary, and between the intermediary and Mr Song. These communications betrayed patterns consistent with the importations and the subsequent police investigations. For example, one box of lava lamps was delivered to Mr Song at about 0843 hours on 8 July 2004. He promptly called the intermediary, and the appellant also called the intermediary a few minutes later before making several calls to a Hong Kong phone number. A similar pattern followed when the controlled delivery of the remaining boxes occurred the following day. Between the two deliveries, there was triangular phone contact between Mr Song, the intermediary, and the appellant. Mr Song was apprehended at about 1520 hours on 9 July, and released about 2145 hours. His release was followed by a flurry of activity between the appellant and Hong Kong, the appellant and Mr Fung, the appellant and Mr Yu, and Mr Song and the intermediary. Phones found in the appellant’s possession were connected to the offending. One of them was used with a Sim card associated with the April and May importations, to call Hong Kong at the time of the July importations, and to contact Mr Yu and Mr Fung. Another was used to call the intermediary, while the third was used to send a message giving the details of the previous address to which the April and May shipments had been sent. We have already mentioned the evidence of the appellant’s unexplained income and spending.

Matters of evidence

[35] Mr Deliu raised three matters under this heading: evidence relating to the earlier acquittals on the April 2004 charges, hearsay evidence, and the financial source and disposition report.

April 2004 acquittals

[36] All of the accused were acquitted on the April 2004 charges at the first trial. At the second trial, evidence was led of the actions of those acquitted, but Mr Deliu complained that the appellant was not permitted to mention the April acquittals.
[37] The issue was first raised on 26 February, during the appellant’s cross-examination of a Crown witness about the seizure of two motor vehicles. The Judge expressed concern that the cross-examination might lead to the jury learning that the appellant had been convicted at the first trial. The appellant asserted that he did not mind, and the Judge urged him to exercise care. The trial continued, and in a ruling given on 3 March the Judge noted that the jury had asked a question about the meaning of “acquitted” or whether a person could be retried for an offence after an acquittal. The inquiry appeared to arise from numerous questions the appellant asked of witnesses about acquittals at the first trial. She then sought submissions from counsel and Mr Wong about whether she should tell the jury of the charges and the verdicts. Mr Wong supported openness, and the Crown agreed having regard to the way in which Mr Wong had sought to elicit information from witnesses about the previous trial.
[38] The Judge then answered the jury’s question by identifying the charges at the first trial, stating that the other accused had been acquitted, and advising that the appellant had been acquitted of the April importation but convicted of the others. However, the convictions had been quashed on appeal and a retrial ordered. She added that what happened at the first trial was “not of any relevance in this trial”. The jury must reach their decision on the evidence given at this trial. They had been told of the previous trial because of the questions that had been asked by the appellant about acquittals.
[39] The answer was given to the jury in written form, at the appellant’s request. In reasons associated with her answer to the jury, the Judge recorded that she had told the appellant that, the issue having been clarified, he should not pursue it further in cross-examination. He was subsequently stopped when he sought to do so.
[40] The starting point is that the previous acquittals did not preclude evidence about the April importation, since such evidence was relevant and not unfairly prejudicial. It cannot be said that the acquittals reflected an actual finding of innocence: R v Degnan [2001] 1 NZLR 280 (CA). We decline Mr Deliu’s invitation, made in his reply submissions, to revisit Degnan. An acquittal may also be admissible; it may show that the jury should take care when assessing the Crown’s evidence at a retrial in which evidence is led tending to prove that the accused committed the offence of which he was acquitted: R v Potter CA450/06 26 April 2007.
[41] In this case, the Crown led evidence of the April importation to show that the appellant did import methamphetamine at that time, as part of a pattern culminating in the July importation. Accordingly, the fact of the acquittal was relevant for the reason given in Potter. However, the jury were told of the acquittal, and it was neither necessary nor appropriate to speculate on why the first jury might have reached its conclusion. The Judge correctly stopped the appellant when he sought to cross-examine further about it.

Hearsay

[42] Evidence about the purchase of the Porsche was given in the form of a hearsay statement from the vendor, Moxuan Liang, who won it at Sky City Casino in May or June and sold it to the appellant about three or four days later. He was paid in $100 notes. He identified the appellant from a photo montage.
[43] Mr Deliu complained that the evidence was inadmissible because Winkelmann J refused to admit it at the first trial, as did Randerson J in collateral civil proceedings. It was irrelevant, or alternatively its prejudicial effect outweighed its probative value because of the impact on the jury of learning that the appellant had bought a $90,000 sports car in this way.
[44] However, Potter J found that the vendor was an independent witness, in that the transaction represented his only involvement with the appellant. Accordingly, the circumstances provided reasonable assurance that his statement was reliable for purposes of s 18 of the Evidence Act. There was evidence that he had left New Zealand and could not reasonably be located; accordingly, he was unavailable. A hearsay notice had been given under s 22. The Judge weighed the probative value of the evidence against its prejudicial effect, noting that it was common ground that the appellant had bought the car and that the issue was whether he had paid cash for it. That turned on identification, and the appellant would have the opportunity to cross-examine a police witness about the photo montage. An identification warning would be given in the summing up. Mr Wong could invite the jury to discount the evidence on the ground that he had not been able to cross-examine Mr Liang. We observe that the Judge did make this point when giving the identification warning in summing up, and no criticism is made of the direction.
[45] We agree that the evidence was admissible, for the reasons given by the Judge. She did not err in her assessment of its probative value relative to any illegitimate prejudice; the purchase was evidence of unexplained income and the only real issue, identification, could be properly tested via a police witness.

Income/expenditure reports

[46] The Judge addressed the admissibility of the appellant’s income and expenditure generally, in connection with successive applications for discharge on, and severance of, the money laundering charge, and held that it was admissible as circumstantial evidence of income from drug dealing. We have held above that she was correct. The only additional point taken by Mr Deliu under this heading was that the income and expenditure reports covered the period from 2000 to 2003, long before the July importation. Accordingly the evidence was irrelevant, or its prejudicial effect outweighed any probative value.
[47] Mr Deliu did not elaborate on this submission, or point to any particular aspect of the evidence that was prejudicial. The Crown’s case focused on the unexplained expenditure in the period immediately preceding the July importation, and the earlier evidence was led merely to exclude the possibility that he had other, earlier, sources of income. In the circumstances, we do not see anything in this ground of appeal.

Fair trial

[48] Mr Deliu submitted that the Judge improperly limited the appellant when conducting his own defence, especially having regard to the extremely serious charges and his lack of knowledge of both English and the criminal trial process. As he was unrepresented the Judge must assist him, to safeguard his right to a fair trial. The Judge wrongly refused to allow him to make a proper opening statement by insisting that it be short, by making him submit in writing in a statement he proposed to make, by making him clarify in advance whether the statement would be made to him, an interpreter, or amicus, and by editing the opening.
[49] These submissions are misconceived. Section 367 of the Crimes Act distinguishes between an opening address and an opening statement. Under s 367(1A) the latter requires leave, and is permitted only for the purpose of identifying the issues at trial. For example, it may identify elements of the offence that are admitted, or parts of the Crown’s evidence that are not in dispute, or an affirmative defence. A Judge may vet a proposed opening statement to ensure that it complies with the limited statutory purpose, and may stop an accused who goes too far. In this case, the Judge went to some pains to explain that her ruling did not limit the appellant’s ability to make an opening address, if he elected to give or call evidence, or to address the jury in closing.
[50] Mr Deliu also submitted that the appellant was not able to make a “free and fair closing”, because the Judge insisted in a minute of 6 March that, having elected not to give evidence, the appellant might not use his closing address as a platform to give evidence. She asked that Mr Dacre assist him with making the distinction, and warned that if he were to stray into giving evidence in his closing address she would be obliged to intervene. He should also refrain from references to previous trials except in the narrow context permissible: the jury had been told of the charges and the verdicts in the first trial, and had been told to put aside those matters and judge the evidence in this trial and this trial alone in order to reach their verdicts.
[51] Mr Deliu’s criticisms of these directions are without substance. By insisting that the appellant restrict himself to the evidence the Judge was doing no more than her duty. Having exercised his right not to give evidence, an accused may not offer the jury in closing an explanation based on facts that are not in evidence and cannot be tested. Nor is there any substance in counsel’s other criticisms of the trial process, such as the submission that the appellant was treated unfairly because the Judge did not give him a copy of the transcript of the first trial immediately; he ought to have had it already, and a copy was made available when he requested it.
[52] Mr Deliu also argued in reply that the appellant was treated unfairly because the charge of possessing methamphetamine for supply was tried with the charges of importing it. A statutory presumption of a purpose of supply applied to the quantity involved, and only by giving evidence could the appellant rebut that presumption; for that reason, the charge ought to have been severed. We reject this submission. The July shipment was massive, as counsel himself said, and there is no foundation for a suggestion that the appellant may have had the drug for personal use. No risk of a miscarriage arises.

Sentence

[53] After the first trial, Winkelmann J sentenced the appellant to 17 years imprisonment, based on a starting point of 15 years imprisonment for the July importation and an increase of two years for the other offences. She was not satisfied that the appellant was the prime mover in New Zealand. The uplift was confined to two years in reliance on the totality principle.
[54] When she came in turn to sentence the appellant, Potter J similarly held that he had an important role in the importation, but did not accept that he was at the “top of the tree”. She reviewed the authorities, including R v Miers (1994) 11 CRNZ 307, in which this Court held that an accused should not ordinarily receive a longer sentence on a retrial unless there are particular circumstances that may justify an increase. She adopted the same starting point (15 years) as did Winkelmann J. An allowance of six months was made for restrictive bail conditions between April 2008 until the verdict in the retrial, resulting in an end sentence of 14 and a half years imprisonment. No issue is taken with the sentence on appeal.
[55] Winkelmann J had imposed an eight-year minimum period of imprisonment. Potter J held that a period longer than the one third provided by the Parole Act 2002 was needed to hold the appellant accountable and to recognise the principles of denunciation and deterrence. The seriousness of the offending and his important role required a minimum period, which she fixed at seven and a half years.
[56] Mr Deliu submitted that the minimum period was manifestly excessive when compared with that imposed by Winkelmann J. Assuming the appellant is eligible for parole at the earliest opportunity, the sentences would have been much the same notwithstanding that he was convicted of only two charges at the retrial. No facts had emerged at the retrial that justified a “longer” sentence.
[57] The appellant did not receive a longer sentence (or a longer minimum period, for that matter), so the Miers principle was not infringed. We observe that the totality principle resulted in the starting point of 15 years being increased by only 2 years at the first trial to reflect the May importation and money laundering. The acquittal at the second trial accordingly does not compel a significant adjustment in either the effective sentence or the minimum period of imprisonment. As Mr Downs submitted, the Crown could not prove how much methamphetamine was imported in May, but the amount imported in July was enormous. Standing alone, it plainly warranted a minimum period of imprisonment and the period of seven and a half years was well within the range available to the sentencing Judge.

Decision

[58] The appeals against conviction and sentence are dismissed.

Postscript

[59] When we issued our minute asking the Judge for a report (see [15] above), Mr Deliu applied for leave to file further affidavit evidence about the delivery of the verdicts. We decline leave. Mr Deliu had the opportunity to file evidence prior to the hearing of the appeal and did so. There is no reason that he should be allowed to file further evidence at this late stage. The Judge's brief report raises nothing new. Rather, it simply confirms what we had assumed to be the case, namely that nothing happened to give the Judge cause for concern.

Solicitors:
Crown Law Office, Wellington