R v Whittaker CA278/96 [1996] NZCA 250 (2 October 1996)

Last Updated: 21 January 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A. 278/96}

THE QUEEN

v.

_{IRENE ROSANNA WHITTAKER}

Coram: Eichelbaum, C.J.

Richardson, P. Tipping, J.

Hearing: 2 October 1996 (at Christchurch) Counsel: E.A. Lorimer for Appellant

G.H. Nation for Respondent

_{Judgment: 2 October 1996}

_{JUDGMENT OF THE COURT DELIVERED BY TIPPING, J.}

The Appellant, Irene Rosanna Whittaker, stood trial in the District Court at Christchurch on an indictment containing one count, namely possession of cannabis plant for supply. She was found guilty and appeals to this Court against her conviction.

There are three grounds on which the appeal is based. First it is said that the verdict was against the weight of evidence. We shall take this as being a reference to the relevant statutory ground, namely that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence: s.385(1)(a) of the Crimes Act 1961. The second ground

is that the Judge erred in his decision to allow the Crown to call rebuttal evidence.

The third ground relates to the summing up. It is said that this did not fairly and accurately reflect the defence case and contained errors of fact and law.

On 14 October 1994 the Police executed a search warrant at premises in which the Appellant was living. The house was also occupied by a Mr Bruce McGregor who was the formal tenant. The Appellant was not in any form of relationship with Mr McGregor. She had her own bedroom, it being the

master bedroom. In the course of the search the Police located cannabis in three different places in the house. The key issue was whether the Appellant was in possession of the cannabis in question. A bag containing 14 grams was found in a kitchen cupboard behind a bag of flour and a packet of cornflakes. Another bag containing 7 grams was found in a vase in the lounge

The bulk of the cannabis and the important amount for present purposes, was found in an ammunition box under a trapdoor in a linen cupboard situated in the lounge. This amount weighed 280 grams, ten times the presumptive level. The Police also found nearly $12,000.00 in cash in different places in the house. When interviewed the Appellant denied all knowledge of the cannabis. She proffered an innocent explanation for the cash which she

accepted was hers.

Four days after the search but before the Appellant's interview with the Police, her son Mark swore an affidavit in which he said he had hidden the cannabis at his mother's house. He said she knew nothing of it. At the trial Mark Whittaker gave evidence in accordance with his affidavit. The Appellant did not herself give evidence. At the end of the defence case, the Crown obtained leave to recall a police officer in rebuttal. He said that after the Appellant's first trial had been aborted he asked Mark Whittaker why he had not turned up at Court at that

trial in accordance with a witness summons. The Detective Sergeant indicated that Mark Whittaker had replied to him:

"It wasn't mine. I didn't want that shit on me. I knew mum would finger me to get me to Court to save her arse."

In saying this Mark Whittaker appeared to have accepted that the cannabis was not his, contrary to the evidence which he gave at his mother's subsequent trial. Whether the Judge should have allowed the Detective Sergeant to give this evidence in rebuttal is the essence of the second ground of appeal.

In support of the first ground of appeal to the effect that the verdict was unreasonable or could not be supported on the evidence, Ms Lorimer raised a number of points both orally and in her written submissions. First it was said that it was not the Appellant's house, albeit she was clearly more than a transient occupant. She occupied the main bedroom, as earlier mentioned. The next matter was that the bulk of the cannabis was concealed in a location which, it

was submitted, the Appellant had no reason to visit. Counsel relied on the fact there was no direct evidence that the Appellant knew of the existence of the trapdoor in the linen cupboard. It was then said that the verdict could not stand with the evidence of Mark Whittaker. That, of course, depended on what the jury made of that evidence. Clearly to find the Appellant guilty the jury must have rejected Mark Whittaker's evidence and Ms Lorimer properly acknowledged that this was within their province.

Counsel also emphasised that there was nothing of consequence found in the house linking the Appellant with any of the cannabis discovered in the search. As to the money found in the house Ms Lorimer urged upon us the

view that the Appellant had been able to provide an innocent explanation for all of the money. It was emphasised that she had given that explanation at the time of

her interview and had provided some documentary evidence in support. However the letter dated 6 October from Mr Glover to Mr Kitte, which pre-dated the search by eight days, actually called for payment by 18 November. The jury were entitled therefore to be sceptical about the suggestion that this explained

$7,000.00 of the money.

Irrespective of the source of the money the Crown asked the jury to attach significance to the fact that it was secreted in different places in the house. This fact was capable of showing that Mrs Whittaker had or at least felt she had control of the house generally. This in turn supported the inference that she had control over the cannabis in the ammunition box. The Crown through Mr Nation submitted that on the evidence as a whole it was open to the jury reasonably to infer that the Appellant had possession. He referred to some of the matters already mentioned and pointed out that other items were discovered in the

house, particularly in the kitchen, which could reasonably have been regarded as associated with the selling of cannabis.

The Appellant acknowledged that a pair of electronic scales were hers. Mr Nation submitted that the jury were entitled to draw an inference from the degree of accuracy provided by these scales in comparison with normal household scales. The jury might also have been assisted by the evidence of Detective Sergeant Fisher to the effect that the scales found were of a kind often found at the addresses of drug dealers. There was no evidence suggesting that the tenant McGregor was implicated in any way in the possession of the cannabis. Indeed the defence did not claim he was. Thus unless Mark Whittaker's explanation that the cannabis was his and that his mother knew

nothing about it was true the overall circumstances otherwise pointed strongly to the Appellant.

The jury were in no way bound to accept Mark Whittaker's evidence. Mark Whittaker's history of drug abuse and lack of money could well have led the jury to the view that it was most unlikely that he would have had so much

cannabis neatly stacked away and ready for sale. The cannabis found in the ammunition box appeared clearly to have been packed ready for dealing. It was contained in deal bags whereas Mark Whittaker was adamant he had never been involved in dealing. This could well have left the jury with considerable reservations as to whether Mark Whittaker was in fact telling the truth when he said the cannabis was his.

Once, as appears obvious, the jury rejected Mark Whittaker's evidence they still had to consider whether such evidence as they did accept led them beyond reasonable doubt to the view that the Appellant had possession. In view of the position of Mr McGregor and the objective circumstances disclosed by the evidence we are satisfied that the jury were entitled to find the Appellant in possession. There was no evidence attempting to rebut the presumption arising from the amount involved. The submission that the verdict was unreasonable or cannot be supported on the evidence must therefore be rejected.

That brings us to the question of the rebuttal evidence. Ms Lorimer submitted that it was (a) not within s.10 of the Evidence Act 1908; (b) collateral in any event; and (c) more prejudicial than probative. We do not regard this evidence as relating to a collateral point or as going only to credit. The evidence related to the central issue in the case, namely who was in possession of the cannabis. In his evidence-in-chief Mark Whittaker said it was his and his mother

knew nothing of it. If true this evidence showed that the Appellant was not in possession. It is our view that the matter is directly covered by s.10 of the Evidence Act which provides as follows:

”10. Proof of contradictory statements of witness - Every witness under cross-examination, and every witness on his examination in chief (if the Judge, being of opinion that the witness is hostile, permits the question), may in any proceeding, civil or criminal, be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and, if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it."

This section allowed the Crown to ask Mark Whittaker in cross- examination, as Mr Nation did, whether he had made the statement in question to Detective Sergeant Fisher. He denied it. This allowed evidence that he had in fact made the former inconsistent statement. The former statement must, of course, be relative to the subject matter of the proceeding. Sometimes questions of sufficiency of relevance and whether the issue is simply collateral can arise but in the present case there can be no doubt Mark Whittaker's former statement was relative to the subject matter of the proceeding, namely who was in possession of the cannabis. There was in our view no illegitimate prejudice in the admission of this evidence. It was directly relevant to a key issue. This ground of appeal must therefore fail. We will deal with the suggestion the Judge did not properly direct the jury about Mark Whittaker's evidence, and the rebuttal evidence in particular, when considering the summing up to which we now turn as the third aspect of the appeal.

It was first submitted that the Judge's direction concerning Mark Whittaker's evidence was insufficient and wrong. The first thing the Judge said on this topic was this:

So the hallmark of a good witness, one whose evidence is acceptable to you is honesty and reliability which brings me to Mr Mark Whittaker. His evidence is important. If you believe it or if you think that it is reasonably possible that the evidence he gave is true then your verdict must be one of not guilty.

The Judge then referred to the circumstances, the words allegedly spoken by Mark Whittaker and correctly identified for the jury the first issue which was whether Whittaker had spoken the words attributed to him by Detective Sergeant Fisher. The jury were rightly told that if they were not satisfied that he had they should put aside Detective Sergeant Fisher's evidence on this point.

The Judge then continued:

"The other prospect is that you find that Mark Whittaker did say the words that Detective Sergeant Fisher claimed that he said. Obviously in that case what he was saying to the Detective was quite different to what he said in his affidavit and quite different to what he said to you. The

evidence he gave you was that his mother didn't know of the cannabis and that it belonged to Mr Mark Whittaker. If you accept what Detective Fisher says then Mr Mark Whittaker has said something quite inconsistent with

his sworn evidence and obviously you would then have to scrutinise his sworn evidence with even greater care than you might be inclined to do even allowing for his drug problem and problems with the law. Consistency or inconsistency is one of the touchstones of credibility (it is

not the only method of determining whether you would find a witness to be believable or not) and for the perfectly simple reason that if a witness consistently says the same thing you are more likely to believe the witness than if he gives different accounts on important matters and of course the Crown say Mr Whittaker did give a completely different account on a very important matter to the Detective when he was arrested."

In effect the Judge thereby directed the jury that the rebuttal evidence from Detective Sergeant Fisher, if accepted, was relevant to whether they believed Mark Whittaker's evidence that the cannabis was his and his mother knew nothing of it. We can see nothing wrong with this direction. It was clear and accurate. Furthermore the jury were also told during the course of the summing up that even if they rejected Mark Whittaker's evidence they must still be satisfied the Crown case proved guilt to the necessary standard.

The next point which Ms Lorimer raised concerned the use by the Judge of the word "uncontradicted" in the following passage from the summing up. The Judge said:

"If you reject their evidence [that is the evidence of the defence witnesses] then you put it to one side as if it had not been given and go back over the Crown case to determine whether in the absence of that evidence it satisfies you beyond reasonable doubt of those matters which the Crown

is required to prove. Of course in that case the Crown's case stands uncontradicted but you must determine whether uncontradicted on the matters which the Crown must prove the case has been proved against Mrs Whittaker."

We do not consider that overall there was any risk of the jury misunderstanding what the Judge was saying. His remarks were based on the premise that the jury rejected the defence evidence. Ms Lorimer suggested that there was no real basis for the jury to reject the defence evidence in relation to the source of the money found in the house. Whether the jury accepted the evidence was for them and we can see nothing wrong with the Judge's direction.

It accurately covered what the jury's approach should be on the premise that they did reject the evidence in question. The Judge made it perfectly clear that the Crown still had to produce enough evidence to satisfy the burden of proof. Any doubts which the jury might possibly have had on this point

must have been dispelled by the Judge's answer to a question from the jury. The jury asked:

"If Mark's evidence is untrue and/or unreliable does that make Mrs Whittaker automatically guilty by default being the only other person named in this case?"

The Judge replied:

"The second question, the answer to it, in short, is no. If you do not believe Mark Whittaker, either because he is not honest, or because his evidence can't be relied on as accurate, then you put it to one side and forget that it was ever given. You then review the Crown case and any other evidence called by the Defence that you find to be acceptable, and

determine whether that evidence proves the Crown's case beyond reasonable doubt. It does not follow that because Mark Whittaker's evidence is rejected, therefore 'automatically' to use the words of the question, Mrs Whittaker is guilty. You must still decide, whether without his evidence there is sufficient evidence to find a verdict of guilty"

In our view there can thereafter have been no confusion in the jury's mind such as might possibly have resulted from the Judge's original use of the word "uncontradicted" in the passage referred to earlier. It is perhaps a word

best avoided in this context but no possibility of a miscarriage of justice arises from its use in this case. Ms Lorimer argued that the jury may have leapt from rejecting Mark Whittaker's evidence straight to the view it must have been the Appellant who was in possession. The Judge's direction made it clear that this would be an improper process of reasoning. It must be said, however, that once Mark Whittaker's evidence was rejected, and there being no suggestion of Mr McGregor being involved, the inference that it was Mrs Whittaker who was in possession became a strong one.

The third point raised on the summing up was that there was no evidential basis for the Judge to tell the jury that the Appellant was the "principal householder" and "in a position to control what was in the house". The passage in question came during the Judge's discussion of the legal ingredients of the concept of possession. His Honour had correctly told the jury that possession required proof by the Crown of both a physical and a mental ingredient. His Honour continued:

"The first ingredient is the physical ingredient and the Crown must prove that Mrs Whittaker (either herself or with others) had physical custody and power of control over the drug. Clearly she had substantial but not exclusive control of the house. She did not own it but she lived in it and appears to have been the principal householder although that is a matter for you. She wasn't just a transient passing through the house. Consequently she was in a position to control what was in the house provided of course that she knew about it ......"

While expressing the view that the Appellant was the principal householder, the Judge clearly left the point to the jury. This was quite consistent with his earlier explicit direction that all matters of fact were for them. In saying what he did in the passages complained of we consider that the Judge was expressing a view open on the evidence while scrupulously making it clear that the ultimate conclusion on this factual issue was for the jury. There were passages in Mrs Whittaker's video interview, to which Mr Nation referred, which made the view of the facts expressed by the Judge a tenable one. Mrs Whittaker said of Mr McGregor "Bruce stays with me". She described it as "my house".

The location of some of the cash, as earlier mentioned, also supported the view of Mrs Whittaker's relationship to the house expressed by the Judge. There is therefore no force in the argument that the Judge invited a view of the facts not open on the evidence.

The final matter raised is one which seems to have become fashionable in recent times. It was complained that the time and emphasis devoted to the Crown and defence cases in the summing up was, as it was put, grossly unequal. The submissions pointed out that the Judge devoted some six and a half pages to the case for the Crown and only two pages to that for the defence. As has been said on previous occasions, it is not a matter of numbers. We consider that the Judge's summary of the cases on each side was fair and accurate. We do not think that there can be any complaint about the way the Judge summarised the defence case as against that of the Crown. The issues were fully and fairly left to the jury. This complaint must be rejected.

As none of the grounds of appeal succeed the appeal is dismissed.

Solicitors:

Kinsman Barker, Christchurch

Crown Solicitor, Christchurch