GUSH v R [2016] NZCA 438

GUSH v R [2016] NZCA 438 [14 September 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA69/2016[2016] NZCA 438BETWEEN HYLTON CHARLES GUSHAppellantAND THE QUEENRespondentHearing: 29 August 2016Court: Wild, Courtney and Woodhouse JJCounsel: C B Wilkinson-Smith for AppellantJ E Mildenhall for RespondentJudgment: 14 September 2016 at 3.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application for leave to adduce fresh evidence is declined.C The appeals against both conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] Following a retrial before Judge Morris and a jury in the Wellington District Court in September and October 2015 Hylton Charles Gush was convicted on charges of possessing methamphetamine for supply and benzylpiperazine (BZP) (aclass C controlled drug) for sale. Judge Morris sentenced Mr Gush on those charges and on a third charge, possessing 1,4-butanediol (a class B controlled drug, known as BD or Fantasy) for supply,1 to a total of three years and seven months'imprisonment.2 Mr Gush seeks an extension of time to appeal his conviction and sentence and seeks leave to adduce fresh evidence in support of the appeal against conviction, which relates to the methamphetamine charge only.[2] There was no objection to an extension of time being granted to bring the appeal and we extend time.[3] The grounds of the appeal against conviction are that the Judge erred in:(a) admitting evidence from a police drug squad detective as expert evidence on the issue of the purity of the methamphetamine; and(b) directing the jury on the issue of the purity of the methamphetamine.[4] The ground of the appeal against sentence is that the Judge wrongly treated the offending as falling within band two of R v Fatu.3Nature of offending[5] In June 2013 police executed a search warrant at Mr Gush's home. On thetop of the refrigerator in the kitchen officers found a white screw-top container that held several snaplock bags. One weighed 9.5 grams and the other 1.8 grams. The contents were tested and found to contain methamphetamine. Another bag was found to contain both methamphetamine and dimethylsulphone (MSM), which is commonly used as a cutting agent. A fourth bag contained only MSM.[6] In the kitchen pantry there was a four litre plastic container that held a clear liquid. This was tested and found to contain the class B drug 1,4-butanediol.1 Mr Gush had been convicted on this charge at the earlier trial before Judge Davidson in February 2015.2 R v Gush [2016] NZDC 389.3 R v Fatu [2006] 2 NZLR 72 (CA) at [34(b)].[7] Inside a vehicle in the garage police found 11.5 purple pills in a white screw-top plastic container. These were tested and found to be BZP.[8] Police also found numerous point bags, electronic scales registering weights up to a maximum of 50 grams and $5,530 in cash. In addition, Mr Gush had a CCTV camera set up to transmit images from the entrance to the property to a monitor in his bedroom.[9] Mr Gush denied possessing any illegal drugs other than the small amount of cannabis found in the kitchen. His explanation for the scales was that they were used to weigh cannabis for his personal use. His explanation for the cash was his scrap metal business.Application to adduce further evidence[10] Mr Gush seeks to adduce an email chain between the police and ESR regarding a survey by ESR of the median level of purity of a small number (20 samples) of small quantities of methamphetamine seized in the Wellington area during a period that pre-dated the seizure of the subject methamphetamine. The emails were not disclosed prior to trial.[11] The basis on which further evidence may be admitted for the purposes of an appeal was summarised by the Privy Council in Lundy v R:4If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.[12] It was not disputed that the evidence is both credible and fresh (though it was not accepted that the police were in breach of their disclosure obligations by failing4 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].to make that email exchange available before trial). However, the Crown opposes the evidence being adduced on the basis that it is not cogent.[13] The Crown put its case squarely on the basis of the presumption under s 6(6) of the Misuse of Drugs Act 1975; in the case of methamphetamine a person is presumed to be in possession of the drug for the purposes of supply or sale if he or she has possession of 5 or more grams of the drug. The presumption refers to the actual quantity of the controlled drug so that in a mixture of controlled drug and cutting agent only the weight of the controlled drug counts towards the 5 gram threshold.5[14] The main issue at the retrial was the purity of the methamphetamine found in the 9.5 and 1.8 gram bags. Initially, the police did not ask ESR to test the contents of the bags for purity. By the time the police made that request ESR had, as a routine step, destroyed the drug samples. In the absence of any direct evidence as to purity the Crown relied on the evidence of Detective Senior Sergeant (DSS) Timothy Leitch, who gave expert evidence as to the purity of methamphetamine commonly found in the Wellington area based on his 11 years' experience as a drugsquad detective.[15] In preparation for his appeal Mr Gush obtained disclosure relating to police dealings with ESR. This included an email exchange between a Detective Mercer and Ms Jan Siegers, an ESR scientist who gave evidence at the retrial about the contents of the bags. In his email to Ms Siegers Detective Mercer outlined the evidence that DSS Leitch intended to give, namely that because the larger bag of methamphetamine was still wet it was likely to have come recently from the source and was unlikely to have been cut. Detective Mercer went on to say that:Tim, Nick and I thought it would be beneficial if the ESR could provide some indication of the average purity of the methamphetamine which was being tested by them.Dr Robyn SOMERVILLE has just finished speaking to us about recent ESRhappenings, including the "snapshot" of the median purity of small amountsof methamphetamine tested at the ESR.5 R v Fatu, above n 3, at [27].The fact that the median purity of "street level" amounts tested by the ESR is near 80 per cent would support our allegation that the large bag ofmethamphetamine found in the defendant's possession was "pure".Is it possible to include this "snapshot" survey in your evidence for thiscase?[16] Ms Siegers responded that she was uncomfortable using the results of the survey as evidence in the case because the survey was of only 20 samples and covered a time period that was outside the date of seizure of the samples in this case. She added:15 of the samples tested (75 per cent) had purities of 70 per cent or greater. That also means 25 per cent did not.The survey was conducted on samples between 0.1 to 1.0 gram. The sample in question was 9.5 grams, therefore it would not have been included in the survey.In summary, I feel the survey, while interesting, is not indicative of overall purity levels of methamphetamine and to make any assumption of the purity of this powder in this case would be misleading.[17] Mr Wilkinson-Smith, for Mr Gush, submitted that the evidence was cogent in the sense that it would have had an effect on the conviction because it would haveaffected the jury's assessment of the police's evidence about purity levels and thus itsassessment of whether there was more than 5 grams of methamphetamine overall. We do not, however, accept that the evidence would have had any effect on the safety of the conviction. The reasons for this view are the very reasons that Ms Siegers gave for declining to give evidence as to median purity levels based on the survey: the survey did not relate to the same time period, the sample was extremely small, and it involved tiny amounts of methamphetamine — the 9.5 grambag found at Mr Gush's address would not have been included in the sample even ifit had been seized within the relevant period.[18] We are satisfied that the jury would not have been assisted by evidence from Ms Siegers along the lines of her email. Nor do we consider that evidence of thesample would have been inconsistent with DSS Leitch's evidence regarding averagelevels of purity, which, as we discuss later, was drawn from a wider range of sources. The application to adduce further evidence therefore fails.Conviction appealFirst ground: admissibility of Detective Senior Sergeant Leitch's evidence[19] DSS Leitch qualified himself, without objection from the defence, to give expert evidence on drug dealing, including in methamphetamine, in the Wellington area. His expertise was based on his 11 years as a detective in the Wellington drug squad; he had been the officer in charge of the Covert Operations Group since 2012, responsible for 18 other officers. The drug squad is responsible for investigation of serious drug offending in the Wellington district, including the importation and manufacturing of class A, B and C drugs. DSS Leitch's knowledge of themanufacture of and dealing in drugs came from his observation of cases, from listening to the intercepted private communications of offenders talking among themselves, from undercover officers and from police informants. As well asworking in this area, DSS Leitch teaches covert techniques to the detectives'qualifying course at the Royal New Zealand Police College.[20] DSS Leitch was asked to comment on the photograph of the 9.5 gram bag and said:It looks wet; you'll see that it's brown. Normally, well methamphetaminecomes in a range of colours, it's mainly white but you will see pinks and browns and yellows and that's really depending on the manufacturingprocess and any additives that have been included during the manufacturing process. This one though with its — it's quite gungy and sticky looking probably a little wet and you'll see that around the outsides there are some lighter coloured crystals, they're more typical of what you'd expect to see.[21] He was then asked:Q. So if it's wet does that tell you anything about its strength or purity?A. If it's wet it's probably been relatively recently manufactured, drying is the last stage of that and if it's not done correctly you'll see it being slightly wet. If it's recently manufactured it's probably alsolikely to be — have a high purity level. I should have probablyearlier said that methamphetamine when it's produced has a maximum purity level of 80 per cent and the type that's, so the crystal form that's used for smoking you'd expect to be between 60and 80 per cent although the experience that we've seen inWellington over the last several years has been of a relatively high purity level in the mid to high 70s.Q. So it looking a bit wet does that indicate it's more likely to be over 60 to 80 per cent purity?A. If it's wet it's most likely to be the higher purity, yes.[22] In cross-examination DSS Leitch was asked whether he would accept that methamphetamine could be cut to a purity as low as 50 per cent and answered that it could be, though his experience in Wellington was that it was "uncommon to have less than 70 in testing".[23] Mr Wilkinson-Smith argued that DSS Leitch's evidence should not have beenadmitted, notwithstanding the lack of objection by defence counsel, because it did not satisfy s 25(1) of the Evidence Act 2006, which provides that:An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.[24] Mr Wilkinson-Smith was critical of DSS Leitch's evidence because theofficer was not a chemist and yet purported to give evidence of a scientific nature.He argued that DSS Leitch's knowledge of average levels of purity ofmethamphetamine in the Wellington area could only have come from ESR testing in cases that DSS Leitch knew of, but that he gave no evidence as to the precise source of his knowledge. It will be evident from the outline of DSS Leitch's evidence wehave given above that he was not in fact relying on ESR test results in other cases. Rather, he drew on sources such as the intercepted conversations of manufacturers and dealers themselves, information produced by undercover operations and information obtained from informants.[25] In our view, analysis by ESR was not the only way in which the level of purity could be established for the purposes of the presumption in this case. DSS Leitch's opinion, based on knowledge of the prevailing practices regarding thecutting of methamphetamine, was evidence that could have provided substantial help to the jury in determining the level of purity of the methamphetamine for the purposes of the presumption. Some caution is needed in using average levels of methamphetamine to prove the actual level of purity in a specific case. In this case,however, the evidence was directed not only to the average or median level of purity but also to the range ordinarily found in the Wellington area. Coupled with the lowest ratio of methamphetamine to cutting agent suggested by defence counsel and the amount of substance seized, it was open to the jury to find that the presumption applied.Second ground: error in summing up[26] Although it was open to the Crown to advance its case both on the basis of the presumption and, in the alternative, on the basis of the other indicators ofcommerciality found at Mr Gush's premises, Crown counsel mentioned only thepresumption in closing.[27] In summing up the Judge said: has the Crown proved the methamphetamine in this case, in its pure formnot its cut form, not in its form with other things in it, but in its pure form of methamphetamine only, has the Crown proved that it weighed more than five grams? If the answer to that is yes then here is where the presumptionapplies. Has the Crown proved beyond reasonable doubt that there was more than five grams of pure methamphetamine? The Crown says to you that there was 11 grams here and the expert drug detective that you heard from said the normal ratio of methamphetamine to cutting agent is between 60 to 80 per cent.And later: are you sure there was more than five grams of pure methamphetaminehere that had not been cut?[28] The Judge provided a question trail to assist the jury, which it would have had in the jury room during deliberations. Question two asked:Are you sure the methamphetamine weighed more than 5 grams?[29] We accept Mr Wilkinson-Smith's criticism that the Judge did not adequately explain that uncut methamphetamine manufactured in New Zealand ordinarily has a maximum purity level of 80 per cent, with the balance comprising by-products of the manufacturing process. Although DSS Leitch had explained this in his evidence, theJudge did not focus on it in summing up. However, we see no risk of justicemiscarrying as a result. On DSS Leitch's evidence, the 11.3 grams ofmethamphetamine contained in the two bags (9.5 grams in one bag, 1.8 grams in the other) was at least 50 per cent pure, but more likely around 70 per cent pure. Even at 50 per cent pure – the lowest level suggested by defence counsel – there was, across the two bags, 5.65 grams of pure methamphetamine (50 per cent of 11.3 grams) with the result that the presumption was easily triggered. We did not understand Mr Wilkinson-Smith to contend there could have been as little as 4.52 grams of methamphetamine (80 per cent of 50 per cent of 11.3 grams). But, if that was his submission, we reject it. That is not the effect of the evidence the jury heard.[30] We note at this point that Mr Wilkinson-Smith advanced an argument that the Crown case could only have relied on the 9.5 gram bag because no evidence at all was given as to the likely purity of the 1.8 gram bag. We do not accept that this correctly reflects the evidence. DSS Leitch was clear that he was giving evidence of a general nature in relation to the purity of methamphetamine ordinarily found in the Wellington region. It was not directed exclusively to the 9.5 gram bag. On the basisof DSS Leitch's evidence it was open to the jury to find that the 1.8 gram bagcontained a substance that was at least 50 per cent, and more likely 70 per cent, pure methamphetamine.Sentencing appeal[31] Judge Morris sentenced on the basis of the total 11.3 grams ofmethamphetamine found in Mr Gush's kitchen and on the basis that it had alreadybeen cut. She referred to the evidence that the normal level of purity in the Wellington region could be expected to be more than 60 per cent and usually more than 70 per cent but also noted the evidence of the possibility that the cut could be as much as 50 per cent and proceeded on the basis of that figure. The Judge treated the case as falling within band two of R v Fatu, attracting a starting point of betweenthree and nine years' imprisonment.6 She specifically noted the observation in Fatuthat where the purity was less than 60 per cent the sentence might be less stern.76 R v Fatu, above n 3, at [34(b)].7 At [30].[32] The Judge rejected the submission made on behalf of Mr Gush that there was no specific evidence of sales; inherent in the possession for supply was an element of commerciality and there was no evidence of personal use of drugs other than a small amount of cannabis. She regarded the case as comparable to Carroll v R.8 In that case the defendant had possession of eight grams of methamphetamine and 143grams of cannabis and a starting point of four years' imprisonment was taken.[33] The Judge in this case took a starting point of four years' imprisonment. Shereduced this by five months to reflect Mr Gush's serious (unspecified) medicalconditions, which were said to make prison a greater burden for him and the need fordeterrence less. The end sentence was therefore three years and seven months'imprisonment.[34] Mr Wilkinson-Smith accepted that the Judge was entitled to proceed on the basis of 50 per cent purity, given the presence of cutting agents at the address. However, he submitted that Fatu was directed at a higher level of purity so that band two was inappropriate. He argued that, given the uncertainty as to the purity of the methamphetamine, the case was more appropriately treated as being on the cusp ofbands one and two and attracting a starting point of no more than three years'imprisonment, with an uplift of no more than six months to reflect the class B and class C drug offending.[35] Ms Mildenhall, for the Crown, argued that the starting point was entirely within range and that the discount generous so that the end sentence could not be regarded as manifestly excessive.[36] We accept that the Judge's decision to proceed on the basis of 50 per centpurity justified a starting point slightly less than the four years indicated by band two. However, even on that approach, the amount of methamphetamine (at least 5.65 grams) and the fact that it was to be treated as being for commercial use mean that an appropriate starting point would have been only very slightly less than fouryears' imprisonment, perhaps three years and nine months. Moreover, a specificuplift would have been justified for the class B and class C offending and the8 Carroll v R [2012] NZCA 328.discount for personal factors was generous. For these reasons we do not consider theend result of three years and seven months' imprisonment to have been manifestlyexcessive.Result[37] The appeals against both conviction and sentence are dismissed.Solicitors:Boyle Mathieson, Auckland for AppellantCrown Law Office, Wellington for Respondent