Dunn v R - [2025] NZCA 216
Date of Judgment
05 June 2025
Decision
Summary
CRIMINAL LAW – conviction – methamphetamine offending – burden of proof – lies direction – interference
PRACTICE AND PROCEDURE – further evidence – reopening a hearing
Mr Dunn was found guilty of seven charges of possessing and supplying hypophosphorous acid (HPA) for the purpose of manufacturing methamphetamine.
Between December 2012 and May 2018, Mr Dunn ordered and received 12,500 kg of HPA shipments from China through his paint manufacturing business. The police executed search warrants at Mr Dunn’s work and home premises and found a total of 3,024 litres (3,494 kg) of HPA. The police also obtained data from Mr Dunn’s business computer and his family’s bank accounts. Mr Dunn was charged with five counts of possessing material capable of being used in the manufacture of methamphetamine and four charges of supplying a material for the manufacture of methamphetamine.
The issue at trial was whether Mr Dunn used and possessed the HPA for legitimate paint business purposes or whether it was used or supplied for the manufacture of methamphetamine. The Crown’s case was circumstantial and relied on the jury drawing inferences based on the quantities of HPA, evidence about HPA’s limited use in the painting industry but substantial use in the methamphetamine industry, the absence of company records about HPA as compared to other chemicals, the secretive way Mr Dunn handled and stored the HPA, evidence from staffers about the HPA at the premises, evidence of unexplained cash deposits that did not correspond with accounting records, and expert evidence that Mr Dunn dealt with the cash in a way consistent with money laundering practices.
Mr Dunn was acquitted of charges relating to his first shipment of HPA but convicted on the charges relating to all the others.
Mr Dunn appealed his convictions on the basis a miscarriage of justice occurred.
After the appeal hearing but before the Court had delivered its judgment, Mr Dunn applied to reopen the hearing and adduce further evidence in support of a new ground of appeal.
Did the Crown questioning and closing invert the burden of proof?
Held: no.
In his evidence in chief Mr Dunn claimed that he had sold large volumes of a product manufactured with HPA to a particular customer. This prompted police to conduct a further forensic analysis of the relevant business records which was put to Mr Dunn in cross-examination. He challenged the correctness of the analysis and said the records supporting his claims were readily available and he would bring them to Court the next day. The records were however never produced and the Judge permitted the Crown to adduce rebuttal evidence of the police analysis that had been undertaken. Mr Dunn was given an opportunity to respond to the rebuttal evidence.
In cross-examination of Mr Dunn as well as in her closing address, the prosecutor referenced his failure to provide the records. The Court held that in the circumstances the Crown’s questions and comments were unobjectionable given Mr Dunn’s positive assertion about the existence and ready availability of the records. The Court also noted that the comments were prefaced by a reminder that the onus of proof lay on the Crown. The Court further held the calling of rebuttal evidence was appropriate in the circumstances, given the volume of material in the trial. The prosecution could not have been expected to foresee every aspect of the accounting records that could be relevant, and it was only after Mr Dunn’s evidence that those particular records became relevant
Did the Judge err in failing to give a lies direction?
Held: no
At trial, the Crown contended that Mr Dunn had lied to police about the storage of the HPA. The prosecutor referenced this several times in her closing address. Mr Dunn’s experienced trial counsel chose not to seek a lies direction pursuant to s 124 of the Evidence Act 2006 and none was given. Such a direction would, however, have added nothing, in light of the directions that were given about the use of Mr Dunn’s evidence, the Judge’s repeating of counsel’s submissions about the unreasonableness of relying on the comments to the police given the situation and the fact that Mr Dunn himself gave an explanation for his non-disclosure. A lies direction in these circumstances may well have served only to confuse.
Did the Judge err in his directions on drawing inferences?
Held: no
In summing up, the Judge explained that the Crown case was largely circumstantial. He set out the key items of circumstantial evidence relied on by the Crown and defence and said it was for the jury to decide whether the evidence was strong enough to support the allegations made by the Crown. In circumstantial cases, it is the combined effect of the individual items of the evidence that is important and it is in relation to the combined effect of the evidence as a whole that a jury should be directed which is what the Judge did. He also gave the orthodox direction on the burden and standard of proof. Nothing else was required.
Did the Crown improperly reference the potential yield of methamphetamine in opening, closing and evidence?
Held: no.
The Crown referenced and called evidence about the amount of methamphetamine that could be produced with the amount of HPA imported and held by Mr Dunn. At sentencing, the Judge rejected the calculations as unrealistic but did accept that Mr Dunn had supplied a significant quantity of the HPA to the methamphetamine trade. The Crown’s comments were appropriate and not an appeal to prejudice. The comments were all expressed in terms of the potential yield and were relevant to the potential financial gain Mr Dunn could achieve by selling the HPA. Neither the language nor the content of the comments crossed the line.
Should the hearing be reopened and further evidence, being an affidavit from a forensic accountant produced for the purposes of High Court civil proceedings, be admitted?
Held: no.
The forensic accountant deposed in his affidavit that, contrary to what the jury were told, a substantial portion of the unexplained cash deposits could have come from legitimate sources.
The Court considered it had jurisdiction to determine the application as a result of its inherent power to regulate its own procedure.
Counsel could not agree on the appropriate test to be applied in these relatively unusual circumstances. The Court found that it was unnecessary to decide which of the competing tests advocated by counsel was correct because the outcome was the same whichever test was applied. It assessed the evidence by reference to the test proposed on behalf of Mr Dunn, namely whether it was fresh, credible and cogent.
The Court held the proposed evidence was not fresh because it could have been called at trial and the fact it was not called reflected a strategic decision made by competent counsel. Mr Dunn was not alleging trial counsel error. The evidence was credible. It was not however cogent for the purposes of the application because it was an attempt to explain the cash levels by postulating a new essentially speculative theory about how the business was run, a theory that was inconsistent with the trial evidence including, importantly, the evidence given by Mr Dunn himself and the uncontested evidence of office staff. The evidence did not potentially impact on the safety of the conviction and the Court was satisfied there was no risk that a miscarriage of justice had occurred due to it not being before the jury.
There was therefore no basis to re-open the appeal hearing.
Result: The appeal against conviction is dismissed and the application to adduce further evidence is declined.
PRACTICE AND PROCEDURE – further evidence – reopening a hearing
Mr Dunn was found guilty of seven charges of possessing and supplying hypophosphorous acid (HPA) for the purpose of manufacturing methamphetamine.
Between December 2012 and May 2018, Mr Dunn ordered and received 12,500 kg of HPA shipments from China through his paint manufacturing business. The police executed search warrants at Mr Dunn’s work and home premises and found a total of 3,024 litres (3,494 kg) of HPA. The police also obtained data from Mr Dunn’s business computer and his family’s bank accounts. Mr Dunn was charged with five counts of possessing material capable of being used in the manufacture of methamphetamine and four charges of supplying a material for the manufacture of methamphetamine.
The issue at trial was whether Mr Dunn used and possessed the HPA for legitimate paint business purposes or whether it was used or supplied for the manufacture of methamphetamine. The Crown’s case was circumstantial and relied on the jury drawing inferences based on the quantities of HPA, evidence about HPA’s limited use in the painting industry but substantial use in the methamphetamine industry, the absence of company records about HPA as compared to other chemicals, the secretive way Mr Dunn handled and stored the HPA, evidence from staffers about the HPA at the premises, evidence of unexplained cash deposits that did not correspond with accounting records, and expert evidence that Mr Dunn dealt with the cash in a way consistent with money laundering practices.
Mr Dunn was acquitted of charges relating to his first shipment of HPA but convicted on the charges relating to all the others.
Mr Dunn appealed his convictions on the basis a miscarriage of justice occurred.
After the appeal hearing but before the Court had delivered its judgment, Mr Dunn applied to reopen the hearing and adduce further evidence in support of a new ground of appeal.
Did the Crown questioning and closing invert the burden of proof?
Held: no.
In his evidence in chief Mr Dunn claimed that he had sold large volumes of a product manufactured with HPA to a particular customer. This prompted police to conduct a further forensic analysis of the relevant business records which was put to Mr Dunn in cross-examination. He challenged the correctness of the analysis and said the records supporting his claims were readily available and he would bring them to Court the next day. The records were however never produced and the Judge permitted the Crown to adduce rebuttal evidence of the police analysis that had been undertaken. Mr Dunn was given an opportunity to respond to the rebuttal evidence.
In cross-examination of Mr Dunn as well as in her closing address, the prosecutor referenced his failure to provide the records. The Court held that in the circumstances the Crown’s questions and comments were unobjectionable given Mr Dunn’s positive assertion about the existence and ready availability of the records. The Court also noted that the comments were prefaced by a reminder that the onus of proof lay on the Crown. The Court further held the calling of rebuttal evidence was appropriate in the circumstances, given the volume of material in the trial. The prosecution could not have been expected to foresee every aspect of the accounting records that could be relevant, and it was only after Mr Dunn’s evidence that those particular records became relevant
Did the Judge err in failing to give a lies direction?
Held: no
At trial, the Crown contended that Mr Dunn had lied to police about the storage of the HPA. The prosecutor referenced this several times in her closing address. Mr Dunn’s experienced trial counsel chose not to seek a lies direction pursuant to s 124 of the Evidence Act 2006 and none was given. Such a direction would, however, have added nothing, in light of the directions that were given about the use of Mr Dunn’s evidence, the Judge’s repeating of counsel’s submissions about the unreasonableness of relying on the comments to the police given the situation and the fact that Mr Dunn himself gave an explanation for his non-disclosure. A lies direction in these circumstances may well have served only to confuse.
Did the Judge err in his directions on drawing inferences?
Held: no
In summing up, the Judge explained that the Crown case was largely circumstantial. He set out the key items of circumstantial evidence relied on by the Crown and defence and said it was for the jury to decide whether the evidence was strong enough to support the allegations made by the Crown. In circumstantial cases, it is the combined effect of the individual items of the evidence that is important and it is in relation to the combined effect of the evidence as a whole that a jury should be directed which is what the Judge did. He also gave the orthodox direction on the burden and standard of proof. Nothing else was required.
Did the Crown improperly reference the potential yield of methamphetamine in opening, closing and evidence?
Held: no.
The Crown referenced and called evidence about the amount of methamphetamine that could be produced with the amount of HPA imported and held by Mr Dunn. At sentencing, the Judge rejected the calculations as unrealistic but did accept that Mr Dunn had supplied a significant quantity of the HPA to the methamphetamine trade. The Crown’s comments were appropriate and not an appeal to prejudice. The comments were all expressed in terms of the potential yield and were relevant to the potential financial gain Mr Dunn could achieve by selling the HPA. Neither the language nor the content of the comments crossed the line.
Should the hearing be reopened and further evidence, being an affidavit from a forensic accountant produced for the purposes of High Court civil proceedings, be admitted?
Held: no.
The forensic accountant deposed in his affidavit that, contrary to what the jury were told, a substantial portion of the unexplained cash deposits could have come from legitimate sources.
The Court considered it had jurisdiction to determine the application as a result of its inherent power to regulate its own procedure.
Counsel could not agree on the appropriate test to be applied in these relatively unusual circumstances. The Court found that it was unnecessary to decide which of the competing tests advocated by counsel was correct because the outcome was the same whichever test was applied. It assessed the evidence by reference to the test proposed on behalf of Mr Dunn, namely whether it was fresh, credible and cogent.
The Court held the proposed evidence was not fresh because it could have been called at trial and the fact it was not called reflected a strategic decision made by competent counsel. Mr Dunn was not alleging trial counsel error. The evidence was credible. It was not however cogent for the purposes of the application because it was an attempt to explain the cash levels by postulating a new essentially speculative theory about how the business was run, a theory that was inconsistent with the trial evidence including, importantly, the evidence given by Mr Dunn himself and the uncontested evidence of office staff. The evidence did not potentially impact on the safety of the conviction and the Court was satisfied there was no risk that a miscarriage of justice had occurred due to it not being before the jury.
There was therefore no basis to re-open the appeal hearing.
Result: The appeal against conviction is dismissed and the application to adduce further evidence is declined.