R v Nguyen 2018 NZDC 4632

Published 15 March 2019

Importing class A controlled drug — application for dismissal of charges — objections to references to cannabis in evidence — Parris v Attorney-General [2004] 1 NZLR 519 — Criminal Procedure Act 2011, s 147(4)(c) — Evidence Act 2006, ss 7 & 8. The defendant faced eight charges: six of importing methamphetamine, one of possession of methamphetamine for supply, and one of possession of a utensil for smoking methamphetamine. The charges of importation arose from six parcels sent from Canada to Auckland. Three of the parcels were intercepted, three were not. The parcels were sent to five different addresses in Auckland, and each parcel that was intercepted was found to contain methamphetamine. The Crown argued that all six parcels were part of a joint criminal enterprise involving the defendant, and would invite the jury to infer from the similarity of the parcels that the non-intercepted parcels also contained methamphetamine. The defendant argued that the three charges relating to the three non-intercepted parcels should be dismissed under s 147 of the Criminal Procedure Act, as there was no way a jury could properly convict. The parcels could have been sent as dummy runs to test Customs, and to decide this question would require the jury to speculate. Alternatively, the three charges were an abuse of process, as the Crown had withdrawn charges relating to the non-intercepted parcels against another person who was involved in the offending. The court considered that the timing of the sending of the parcels arguably weighed against their being sent as dummy runs. This was a matter that could fairly be put to the jury for them to decide. As for the abuse of process argument, the Crown had dropped the charges against the other person as part of a plea, after he had pleaded guilty to other charges. The Crown is entitled to drop charges as part of plea arrangements, and the fact that they did so did not necessarily mean there was insufficient evidence for a conviction. The court declined to dismiss the charges, and also ruled that the defendant could not cross-examine the officer in charge on the decision to drop the charges against the other person. This would be prejudicial and irrelevant to the strength of the case against the defendant. The defendant also objected to references in the evidence to cannabis that had been found at her address, and sought to have the references removed. The court agreed, reasoning that cannabis is different to methamphetamine and there was no evidence to tie the cannabis to the methamphetamine that was the basis of the charges against the defendant. The court found the references to the cannabis were inadmissible. Judgment Date: 12 March 2018.