DIXON v R [2018] NZCA 111

DIXON v R [2018] NZCA 111 [23 April 2018]NOTE: ORDER MADE IN THE HIGH COURT SUPPRESSING EXTRACTSOF THE HIGH COURT JUDGMENT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA291/2017[2018] NZCA 111BETWEEN LEE DIXONAppellantAND THE QUEENRespondentHearing: 8 March 2018Court: Clifford, Simon France and Whata JJCounsel: T W Fournier for AppellantJ C Pike QC for RespondentJudgment: 23 April 2018 at 12.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] In September 2015, the appellant, Lee Dixon, was charged on a representativebasis with importing cocaine between 24 November 2014 and 2 July 2015. Mr Dixonhas pleaded guilty to, and been convicted of, that charge.1 On the Crown case,1 He also pleaded guilty to four charges of supplying cocaine, one charge of offering to supplycocaine and one charge of failing to assist a person exercising a search power.Mr Dixon arranged a number of transactions as a result of which he imported at leastsix kilograms of cocaine. Mr Dixon only admits that, on one occasion, he importedbetween 50 and 100 grams of cocaine.[2] Davidson J resolved that dispute of facts before sentence in favour of theCrown.2 On that basis Davidson J sentenced Mr Dixon to 14 years and six months'imprisonment to be served concurrently with the other sentences. There was aminimum period of imprisonment of seven years.3[3] Mr Dixon now appeals his sentence. He first says the Judge was wrong to findhe had imported any more cocaine than he had admitted. Alternatively, he says theJudge could not safely conclude that anything more than 1.3 kilograms had beenimported. On that alternative basis, his end sentence should be reduced toapproximately 11 years' imprisonment.[4] If he does not succeed in this appeal, Mr Dixon accepts that the sentenceimposed on him was an appropriate one.BackgroundMr Dixon's offending[5] In 2014 Mr Dixon travelled to South America. On his return to AucklandAirport on 29 March 2014 he was found to have some 97.5 grams of cocaine concealedon his body. In April 2015, and based on that discovery, he was convicted of importingcocaine and sentenced to seven months' home detention and 150 hours of communitywork. Mr Dixon has served that sentence.[6] Both before and after his conviction and sentencing on that charge, Mr Dixonwas the subject, with others, of a separate police investigation, Operation Hook. Thepolice terminated Operation Hook in early July 2015. Mr Dixon was arrested as partof that operation, and was charged on 3 July 2015 with conspiracy to import cocaine.Further charges followed. Ultimately Mr Dixon faced nine charges:2 R v Dixon [2017] NZHC 210.3 R v Dixon [2017] NZHC 920, at [62] and [65].(a) importing cocaine (representative) between 24 November 2014 and2 July 2015;(b) in the alternative, conspiracy to import cocaine;(c) supplying cocaine (x 4) on various dates between 1 March 2015 and28 March 2015;(d) offering to supply cocaine on 18 April 2015;(e) failing without reasonable excuse to assist a person exercising a searchpower when requested to do so; and(f) attempting to pervert the course of justice.[7] Two of Mr Dixon's associates, Mr O'Leary and Mr Mason, faced relatedcharges. The trial of all three was to begin in the High Court in Christchurch on1 August 2016. On 24 June 2016 Mr Dixon pleaded guilty to all the charges he faced,save for that of attempting to pervert the course of justice. Sentencing was deferred,pending the resolution of the disputed fact as to the amount of cocaine Mr Dixon wasresponsible for importing.[8] The police did not, either on the termination of Operation Hook or thereafter,locate any of the at least six kilograms of cocaine said to be involved in Mr Dixon'soffending. Accordingly, save for the facts necessarily implied by Mr Dixon's guiltypleas, the Crown case against him was circumstantial. There were five major strandsto that case. The first four related to matters discovered by the police as a result oftheir investigations:(a) Evidence of Mr Dixon having converted significant amounts of cashfrom NZD into USD.(b) Evidence of Mr Dixon having handed USD 70,000 cash to a policeundercover officer.4(c) Evidence of Mr Dixon having transferred significant NZ currencyamounts via Western Union to Hong Kong and Panama.(d) Intercepted communications suggesting Mr Dixon's involvement incocaine importation and dealing.[9] The fifth strand comprised expert evidence from a Mr D'Ambrosio, a specialagent working for the US Drug Enforcement Administration (the US DEA). It wasMr D'Ambrosio's expert opinion that Mr Dixon had imported at least six kilogramsof cocaine.[10] Based on that evidence, the police prepared a statement of facts for thepurposes of the disputed facts hearing. That statement was marked to indicate thosefacts which Mr Dixon did and did not accept.The undisputed facts[11] In essence, Mr Dixon accepted:(a) He had contacts in the cocaine trade in Colombia from his visit there in2014. In 2015, he imported cocaine from Colombia into New Zealand.(b) As charged, he supplied and offered to supply cocaine to variouspersons in New Zealand in March 2015.(c) He:54 That hand over occurred after the police had received information that a person was endeavouringto launder USD 70,000 to Colombia from Christchurch. A police "sting" was then set up, andOperation Hook commenced into the suspected money laundering operation.5 Or his associates.(i) converted, in late February and early March 2015, someNZD 91,117.85 cash into USD 61,401.00 cash at two localmoney changers in 10 separate transactions;(ii) sent, between January and April 2015, by 10 separate transfersby Western Union a total of NZD 53,944.22 for collection inUSD by Colombian nationals in Hong Kong and Panama; and(iii) handed, on 16 March 2015, USD 70,000 in cash to anundercover agent in a park in Christchurch.(d) On 20 March 2015, the police had begun to intercept his privatecommunications. He had been aware of the risk of that happening. Sohe used coded or obscure language, and multiple phones and phonenumbers, when communicating about drugs. More specifically:(i) On 21, 25 and 26 March he spoke to associates about thepossibility of supplying cocaine to them and subsequently didso.6(ii) On 12, 13, 14, 16 and 18 June he communicated with hisSouth American contact. In those communications Mr Dixonand his South American contact discussed the fact that anassociate was in transit somewhere, that "ten" of what theassociate had with him were going to New Zealand, the progressthe "associate" was making, when the "team" might be expectedto arrive and arrangements for the South American contact toadvise Mr Dixon of the flight number, airline name and trackinginformation for the associate and/or what he was bringing withhim.6 It was on the basis of those admitted conversations that Mr Dixon pleaded guilty to supplyingcocaine over that period.(iii) On 30 June 2015, a package arrived in New Zealand fromVenezuela. On that date Mr Dixon communicated with hisSouth American contact confirming something had beendropped off, that it would be left to cool off for a couple of days,that his mate was going down to get it and would then be"driving up behind an old lady carrying back to Chch!!! But nophones!!!!". Mr Dixon then discussed with his South Americancontact how "it" was to be opened. The South American contactsaid "it" was inside the tank, sealed like a [expletive] and theywould have to cut the metal with a saw.7(e) Subsequently when Mr Dixon was remanded in custody, the followingemails were sent to him and went unanswered:Hey mate!!!! How are you!!! We need some update herebro!!!!!Broo my partners are getting crazy here . Mate tell me whatis going on!!!!Mate!!!!!??????????Hey mate wtf is going on?Man are you ok???? Please let me know what is going on????If you are having troubles tell me man!!!!!!!!The disputed facts[12] Mr Dixon denied those facts which reflect the process by whichMr D'Ambrosio had reached his conclusion as to the amount of cocaine necessarilyinvolved. That is, he denied that:(a) The money he had handed to the undercover police office inHagley Park was for the purchase of cocaine.7 Neither that package, nor any of the cocaine it allegedly contained, were located by the police. Atleast one reason for that would appear to be that the police did not become aware of that shipment,and Mr Dixon's connections to it, until the middle of 2016.(b) The payments made via Western Union were for the purchase andimportation of cocaine into New Zealand from Colombia.(c) Those arrangements had been made with persons not yet identified inColombia.(d) He had imported cocaine on two separate occasions using hisSouth American contacts.(e) In June 2015, a shipment of cocaine was sent from South America fordelivery to New Zealand and that around that same time a 10 kilogrampackage with dimensions 70 x 26 x 19 centimetres and labelled ascontaining a submersible pump was sent via FedEx from Venezuela toNew Zealand (the Rakaia package).(f) Wholesale cocaine could be sourced from South America at a marketrate of $2,500 per kilogram. That rate typically included transportationfees to nearby locations in Colombia or others in close proximity. Therewas otherwise a wide variation in terms of transport costs to locationsfurther afield.(g) The money he had sent overseas (USD 109,797) allows a conservativeestimate to be made that he had imported at least six kilograms ofcocaine into New Zealand. The amount of money sent by him couldhave potentially sourced up to 35 kilograms of cocaine.The disputed facts hearing[13] Two witnesses gave evidence for the Crown at the disputed facts hearing;Detective Sarah Waugh and Mr D'Ambrosio.[14] Detective Waugh formally produced various exhibits. They includedtranscripts of recovered and intercepted communications and Mr Dixon's DVDinterview. In addition, Ms Waugh provided a broad outline of Operation Hook, anddetailed the circumstances in which details of (the Rakaia package), and Mr Dixon'slinks to it, were discovered.[15] Whilst preparing for trial the police realised the data recovered from one of thephones seized from Mr Dixon had not been analysed. When that analysis was carriedout the police became aware of Mr Dixon having tracked a particular FedEx package.That information lead them to the details of that package. That package weighed10 kilograms and was labelled as containing a submersible pump. That package hadbeen delivered to an address in Rakaia. The police had then linked telephoneconversations between Mr Dixon and his South American contact to the timeframeand circumstances of the arrival of that package in New Zealand and its delivery toRakaia.[16] Detective Waugh confirmed, however, that no evidence existed that related toa particular arrival of cocaine after 30 June 2015 that could be linked to Mr Dixon.She also confirmed the police accepted that the USD 70,000 transaction betweenMr Dixon and the undercover agent was some sort of money laundering transaction.[17] That Mr D'Ambrosio was an expert was not challenged. That isunderstandable. His experience was illustrated by specific examples he outlined in hisformal brief, based on work he had undertaken with the Philadelphia and Miami fielddivisions of the US DEA. That work included undercover infiltration of Colombiancartels, the use of a wide variety of surveillance techniques, covert engagement withcocaine traffickers (including the actual purchase on one occasion of USD 1 millionworth of cocaine), operations that resulted in the seizure of significant amounts ofcocaine and other drugs, and the arrest of a significant number of members oforganised criminal groups.[18] In that brief Mr D'Ambrosio also explained how the Colombian cocaine tradehad developed since the effective defeat of the Colombian drug cartels in thelate 1990s. He set out the general ways in which cocaine was packaged, priced andshipped, including the roles of money collection and laundering in those processes.He described how cocaine dealers (wholesalers, exporters, middle-men and importers)typically communicated with each other.[19] Mr D'Ambrosio then considered the evidence obtained by the police. In hisbrief, he focused on:(a) An intercepted message of 13 March 2014 which in his opinion showedMr Dixon in Colombia telling a contact cocaine was available for£1,500 a kilogram, or USD 2,475. US DEA information at the timewas that cocaine was valued at USD 1,550 to USD 2,550.(b) The Western Union Transfers. He noted:(i) Panama and Hong Kong were two very common locations tolaunder drug money.(ii) US dollars collected in such places by Colombiandrug traffickers could be exchanged for peso amounts collectedfrom legitimate businesses in Colombia who needed US$ forimport transactions. The launderer would use the US dollars tomake those purchases, and in that way obtain pesos needed topay for cocaine in Colombia.(iii) The Western Union transfers (producing relatively smallamounts of US dollars in Hong Kong and Panama for collectionby Colombian nationals) were suspect accordingly. Theintercepted communications from that time added to the picture.So did the USD 70,000 drop off.(c) The messages between Mr Dixon and his South American contact inJune 2015, linked to the Rakaia package, were typical of conversationsthat take place between drug suppliers and drug recipients whenengaged in a drug smuggling operation. They reflected Mr Dixon andthe supplier checking on the status of a pending shipment and providingdelivery details relating to that shipment. Similarly, the messagesreflected subterfuge and considerable care being taken to avoiddetection at the time the shipment was to be picked up. For example,Mr D'Ambrosio stated:The recipient states that his partner will be driving behind theelderly woman. The use of a "load" car, the car that containsthe drugs, and a "trail" car, the car that follows behind is avery commonly used method for drug traffickers to make surethey are not in possession of the drugs but close enough toknow if the courier is intercepted by law enforcement.[20] Taken overall, Mr D'Ambrosio's expert evidence was that:(a) The details of Western Union transfers and of the USD 70,000 cashpayment to the undercover officer agent in New Zealand, together withall the intercepted text messages, including those related to the parceldelivered to Rakaia, established that Mr Dixon was importingwholesale quantities of cocaine into New Zealand and that:(i) on an interpretation of that evidence on the basis that was mostfavourable to Mr Dixon, at least six kilograms were involved;and(ii) interpreted on the basis that was least favourable to Mr Dixon,more than 30 kilograms could have been involved.8[21] In cross-examination by counsel for Mr Dixon, and in response to questionsfrom the Court, Mr D'Ambrosio confirmed on a number of occasions that, in hisopinion, both the Western Union transfers and the USD 70,000 money handed to theundercover agent were payment for cocaine Mr Dixon had acquired from Colombia.8 Based on the total USD sum he considered was involved (that is the USD transferred throughWestern Union and the USD delivered to the undercover agent, a total USD 109,767)Mr D'Ambrosio made three sets of calculations as to the price being paid for the cocaine and thecosts that would be incurred in having the cocaine delivered to New Zealand. The interpretationmost favourable to Mr Dixon, that is the one which resulted in the smallest amount of cocaine,involved Mr Dixon facing higher than average costs for both purchase and delivery. The leastfavourable had him paying market costs.The High Court decision[22] Having summarised the evidence, Davidson J set out the approach heconsidered he was required to take in determining whether the Crown had provedbeyond reasonable doubt that Mr Dixon had imported at least six kilograms ofcocaine. He described that task in the following way:[97] Logic dictates that to be sure of a conclusion reached by inference onall the available evidence, the facts on which the inference is based must besound in the sense that they are clearly established. The notion of factualfindings reached on a balance of probabilities then combining to produce aninference beyond reasonable doubt is, to my mind, problematical. I think thatis what is meant by the authorities when they say that the factual premises onwhich an inference is to be drawn must be clearly established, but in somecases, and this is one, I consider that the fundamental factual premises whichfound the primary inferences asserted, and the inferences themselves must allbe proved beyond reasonable doubt.[23] To undertake that exercise, the Judge posed six questions for himself. Byreference to those questions, and in summary, his analysis was:(a) He was sure, based on Mr Dixon's admission, that Mr Dixon hadimported cocaine into New Zealand between 24 November 2014 and2 July 2015 on at least one occasion.9(b) He was not sure on how many occasions Mr Dixon had importedcocaine into New Zealand during that period.(c) He was sure, as Mr D'Ambrosio had concluded, that the total USDtransactions were initiated by Mr Dixon to pay for cocaine importedfrom Colombia. The Judge concluded:[119] I accept that the evidence establishes beyondreasonable doubt that the defendant was involved withcocaine importation and it is a natural and commonsenseinference to link the money transactions, all of which have aconnection to Colombia, to that importation. Any otherconclusion is fanciful. The evidence is, in my view,overwhelming in that regard.9 R v Dixon, above n 2, at [100].(d) He was not sure that the package from South America containedcocaine or, if it did, it could be linked to Mr Dixon and the monies hehad sent or intended to send to his offshore drug associates.10Moreover, because of the difficult of linking those payments to thepackage, even if he were sure it contained cocaine, he would not havebeen sure as to the amount.(e) He was sure that the cocaine Mr Dixon admitted importing intoNew Zealand had been paid for by the monies transferred and intended(the drop off) to be delivered to his offshore associates and thatimportation had occurred between 24 November 2014 and 2 July 2015,as alleged by the Crown.11(f) He was sure based on Mr D'Ambrosio's expert evidence that Mr Dixonimported at least six kilograms of cocaine.12 He noted that heconcluded to a high degree of probability that, in fact, Mr Dixon hadimported more than that.13This appeal[24] For Mr Dixon, Mr Fournier challenged the legitimacy of two of the Judge'sconclusions:(a) First, that the USD 70,000 delivered to the undercover agent was apayment for cocaine; and(b) Secondly, that the necessary correlation existed between the variousmonetary transactions (the Western Union transfers and the drop off)and cocaine importation.[25] As can be seen, those two challenges to the Judge's conclusions overlap.10 At [121].11 At [145].12 At [157].13 At [157].[26] As for hand-over of the USD 70,000 cash, the police, Mr Fournier submitted,must have additional evidence as to what was intended to happen to that money andwhat in fact had happened to it. All they had disclosed, however, was that —apparently — the money was handed over as part of a wider operation. The necessaryinference was that was done to protect that operation. But, in the absence of evidenceas to what was done with the USD 70,000, concluding that it was intended by MrDixon for the payment of cocaine obtained from Colombia was speculative.[27] Similarly, in the absence of any specific evidence as to the method and datesof Mr Dixon's admitted importation of cocaine, any conclusion as to the amount ofcocaine involved over the period covered by the representative charge was alsospeculative. Mr D'Ambrosio's evidence was that cocaine importers might either payin advance, or once the cocaine had been delivered. There was no evidence as to whichof those two methods was used. Given the period of the representative charge, and thepattern of Western Union money transfers it could not, therefore, be concluded thatany money Mr Dixon sent offshore was a payment for cocaine or, if it was, how muchwas involved. If the Court did not accept that proposition then, given the timeframeover which the various transactions occurred, the Judge could only safely use theWestern Union payments in January to calculate quantum. On Mr D'Ambrosio'sreckoning, those January payments of USD 20,000 would, on the basis mostfavourable to Mr Dixon, reflect the importation of a maximum of approximately1.33 kilograms of cocaine.[28] The Crown first noted that whilst an inference must be based on proven facts,each fact relied upon did not need be proved beyond reasonable doubt. That,nevertheless, was the higher standard Davidson J had set for himself.[29] In reaching his conclusions, Davidson J had not impermissibly engaged inspeculation. The evidence adduced by the Crown was sufficient to support each of hiskey factual findings. Moreover, the inference that Mr Dixon had imported at leastsix kilograms of cocaine was available to him.[30] Ultimately Mr Dixon admitted money transfers related to Colombia totallingapproximately USD 110,000. He admitted importing, offering to supply andsupplying cocaine between November 2014 and July 2015. Mr Dixon admittedWestern Union transfers to Colombian nationals. The intercept evidence establishedthe link between the USD 70,000 and Colombia. It was open to the Judge to conclude,therefore, that Mr Dixon had received cocaine in exchange for payments he had made.The expert evidence then provided a proper evidential foundation for the conclusionthat Mr Dixon had imported not less than six kilograms of the drug. Against thebackground of Mr Dixon's guilty pleas and the contextual evidence of his involvementin the importation of cocaine from Colombia (including evidence concerning theRakaia package), the Crown submission was that the inferences the Judge drew wereirresistible.Analysis[31] As the Crown noted, Davidson J set a higher standard of proof for himself thanhe was required to do at law.14 We bear that in mind in deciding the appeal.[32] Turning to the evidence, Mr Dixon had, as the Crown noted, admitted he hadimported cocaine into New Zealand on at least one occasion during the period coveredby the representative charge. He had admitted coded conversations with the personthe Crown describes as his South American contact. He had admitted exchangingNZD into USD, transferring NZD via Western Union to be picked up in Hong Kongand Panama by Colombian nationals in cash as USD. He admitted handing overUSD 70,000 cash to a police undercover agent. On those admissions, alone, theCrown case that Mr Dixon must have imported more than the relatively small amountof cocaine he had admitted was strong. Mr D'Ambrosio's expert evidence, togetherwith a number of aspects of the intercepted communications, in our view did, as theCrown submitted, make that case irresistible.[33] Mr D'Ambrosio's overall conclusion in his formal brief, which he did notdeviate from in cross-examination, was that:Based on the information provided, to include the BBM messages, thecommunication security measures employed such as the use of codedlanguage, the use of multiple cellular phones, the changing of phones, the14 See the discussion about the standard of proof for circumstantial evidence in Thomas v The Queen[1972] NZLR 34 (CA).techniques used to limit exposure to arrest after the shipment arrived inNew Zealand, the use of a hermetically sealed shipment, the use of WesternUnion with several third party individuals used to send and receive money, thesmall structured amounts of the money sent, the flow of money throughPanama and Hong Kong, and the Colombian connection with every singlemoney remittance, and the $70,000 drop-off to an undercover officer, it is myopinion that all of these factors indicate that the people involved were engagedin a drug smuggling operation. The prices discussed in the providedintercepted messages reflect the actual cost of cocaine in Colombia during thistime period, as indicated by the UNODC and internal DEA documents, andfurther indicate that the individuals involved were directly working withcocaine sources of supply, with few, if any, middlemen or brokers. All of thefacts provided and described herein have mimicked the modus operandi andoperational details of most other drug trafficking organizations involved insmuggling operations that I have personally witnessed and investigated.[34] Mr Dixon's appeal did not challenge the generality of that conclusion. RatherMr Dixon focused first on the absence of a link between the USD 70,000 handed tothe police undercover agent and his admitted importation of cocaine from Colombia.[35] In addition to Mr D'Ambrosio's expert evidence, aspects of the interceptedcommunications in which that hand-over was organised evidence that link.[36] Mr Dixon was first contacted by an undercover agent in the early afternoon of13 March 2015:Agent Um I was given this number to give you a call, cos you needsome work doneDixon Work done on what?Agent Ah some a pickup of some, moneyDixon A pick up?Agent YeahDixon Some money?Agent YeahDixon I don't know, ah I'm not sureAgent You're not sure?Dixon Pic ups of some money, so what sort of money? Is this someoff over in Colom, Colombia?Agent Um, am I speaking to the right person?Dixon So who are you? Who do you work for? What's the story?Agent I just organise these thingsDixon Oh do ya?Agent YeahDixon Okay cool, no I've got, I've got a friend ah who's visitingColombiaAgent OkayDixon Who you might be talking about yeahAgent Yeah probablyDixon Um if it's if it's through him, maybe you know butAgent Yeah I'd say it isDixon Okay cool, okay cool well I'll ring him up nowAgent OkayDixon And I'll give you a call back, okay cheers[37] So, at that point Mr Dixon has confirmed that he has money which he wishesto get to a "friend" who is visiting Colombia, and that he will call that friend to confirmhe should respond to the approach that had been made to him.[38] The undercover agent called Mr Dixon back a little while later. Mr Dixon firstconfirmed his wish to accept the undercover agent's approach:Agent How's it going?Dixon Um hello, how you doing?Agent Good thanksDixon Good, good, good, yeah I just had confirmation of the otherone (laughs) sorry[39] Once the details of the meet were agreed, the following exchange occurred:Agent How much is it for?Dixon SeventyAgent Seventy? Okay[40] Mr Dixon's express acknowledgement of the fact the money was intended forColombia, and of the amount, provide — in the context of Mr Dixon's admissions, allthe detailed evidence, and Mr D'Ambrosio's expert evidence — a sufficient evidentialbasis for the Judge's conclusion that the USD 70,000 was payment for cocaineMr Dixon had imported within the period covered by the representative charge.[41] Mr Dixon also challenged the extent to which the money transferred viaWestern Union was properly evidence of cocaine importation. Whilst Mr Fournier'salternative argument accepted the transfers made in January could be, he argued thosemade in March could not. The reason for that proposition appeared to be theuncertainty as to whether or not, in making those payments, Mr Dixon was to obtaincocaine by payment in advance, or on consignment. The Judge had placed somereliability on the absence, in any of the intercepted communications, of any concernfrom Mr Dixon that drugs paid for in advance had in fact been delivered.15 The Judgewas satisfied that whether those transfers were payments for drugs sold onconsignment (that is Mr Dixon paid for the drugs after they had been delivered toNew Zealand) or payments made in advance of delivery, all those drugs would havebeen delivered by 2 July 2015.16 Mr D'Ambrosio's evidence was that generally whencocaine was sold in wholesale amounts delivery was made on consignment. Where asupplier did not trust a purchaser, payment in advance might be required.Mr D'Ambrosio's evidence was that the pattern of transfers via Western Union fittedexactly with the consignment course of conduct he had seen time and time again overhis career.15 R v Dixon, above n 2, at [126].16 At [131].[42] In cross-examination it was put to Mr D'Ambrosio that, because of the lack ofany detailed evidence as to the basis upon which Mr Dixon obtained cocaine and theabsence of any evidence of his having dealt in cocaine in the quantitiesMr D'Ambrosio suggested were involved, Mr D'Ambrosio could not draw thoseconclusions. The following passage from Mr D'Ambrosio evidence incross-examination in response to that general proposition reflects the gist of hisevidence on the point overall:No, that's why I'm telling you that the focus is directly on the defendant andhis relationship with the Colombians and the amount of money that hetransacted with the Colombians. Everything else beyond that is, like you said,speculation. The fact of the matter is you have substantial evidence indicatingthat he is working with these Colombians in the cocaine trade. You havesubstantial evidence indicating that he is paying the market rate for the cocaineand then you have all of these subsequent transactions in very large amountsof money and by putting it all together it is, in my opinion, overwhelminglyevident that the defendant was engaged in this importation activity and waspaying the Colombian suppliers for the imports of cocaine. So beyond that,both of us are speculating as far as what Mr Dixon did with the cocaine, whohe gave it to, how much he sold. I don't have any evidence beyond theevidence that's been presented to me which shows that he was engaged in thisillicit cocaine activity with these Colombians. All of the money transactionsfit very neatly into that activity and the dollar amounts coincide with theknown cost of cocaine at the time and, of course, you have the total dollaramounts that yield you the quantity of cocaine through multiple scenarios.[43] We can see no reason to distinguish, as Mr Fournier submitted was required,between the significance of the money sent through Western Union in January andFebruary and the significance of the money sent in March and April.[44] We are therefore satisfied that there was sufficient evidence for the Judge to besure that Mr Dixon had imported at least six kilograms of cocaine.[45] In saying that, we also note for our part that the evidence as we read it satisfiedus that, in reaching that conclusion, the Judge would also have been entitled to find asa fact that cocaine had been imported in the Rakaia package, and that Mr Dixon had,as in our view the trace he initiated on that package and his interceptedcommunications relating to that package very clearly show, been a party to thatimportation. We acknowledge that the Judge was not in the position to reach aconclusion as to a specific amount of cocaine involved. But in our view, it clearly wasa significant amount.Result[46] Mr Dixon's appeal is, therefore, dismissed.Solicitors:Crown Law Office, Wellington for Respondent