R v Haywood CA245/01 [2001] NZCA 407 (10 December 2001)

Last Updated: 7 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/01

THE QUEEN

V

RUTH CHRISTINE HAYWOOD

Hearing:	4 December 2001
Coram:	Keith J Doogue J Gendall J
Appearances:	J H M Eaton for Appellant P K Hamlin for Respondent
Judgment:	10 December 2001

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1] The appellant was convicted after a jury trial in the District Court at Christchurch of three crimes under the Misuse of Drugs Act 1975, namely having possession of a precursor substance with intention to use it for the commission of offence against s6(1)(b) of the Misuse of Drugs Act 1975, possession of Class B drug morphine for the purpose of supply, and knowingly permitting premises to be used for the purpose of the commission of an offence against the Act. In addition to those three convictions she was also convicted of receiving a number of tools previously stolen, possession of explosives (shotgun ammunition) and possession of a pistol (namely a sawn off shotgun).
[2] She appeals against conviction on all counts on the general basis that conduct of her case by counsel may have led to a miscarriage of justice. She contends that errors of counsel were that he:

• (a) failed to seek an adjournment despite her physical and mental state at the commencement of the trial;
• (b) failed to interview and take a brief of evidence from a critical defence witness (her partner, a co-accused, Mr Strange) who had pleaded guilty, and accordingly failed to follow her instructions;
• (c) failed to call Mr Strange as a witness at trial, and in doing so failed to follow her instructions;
• (d) failed to have proper or adequate regard to section 66 of the Arms Act 1983 in conducting the defence case.

[3] The Crown’s case was that Police executed a search warrant at the appellant’s home at 29 Clarence Street, South Addington, at 9.30am on morning of 3 November 2000. She shared this home with her partner, Mr Strange. They both were present when the warrant was executed and there were no other occupants. In a bedroom at that property the Police found a number of items being tools of the nature of a skill saw, heat gun, torque wrench, bench grinder which had been previously stolen from a second-hand shop in Christchurch. When spoken to Mr Strange told the Police that those items were his. Mr Strange was heard to call out to the appellant “they [the Police] are on the roof, I am fucked, ring me a lawyer”. The Police found various other items hidden inside and underneath decking on the exterior of the house. A shotgun was located secreted beneath the warming drawer of the stove in the kitchen of the house. On the top of the refrigerator was a box containing shotgun ammunition. Amongst the items found were sealed plastic containers and specimen jars containing a total of 23 tablets, containing 30 milligrams of morphine sulphate, 93 tablets containing 60 milligrams of morphine sulphate and 20 tablets containing 100 milligrams of morphine sulphate. A sealed box contained a glass bottle of liquid which had a volume of 225 millilitres and was acetic anhydride. A further 36 tablets containing 60 milligrams of the sulphate salt morphine (being LA morphine tablets) were found, these being medication which had been legitimately prescribed to the appellant. In addition three small containers of liquid known as acetic anhydride (totalling 22.8 millilitres) were found. Morphine and its salts are well known Class B controlled drugs and acetic anhydride is a chemical used to convert morphine into heroin. It is a precursor substance in terms of Schedule 4, Part 2 of the Misuse of Drugs Act 1975.
[4] There was evidence that the appellant’s fingerprints were found, on the inside and outside, of black plastic wrapping around a plastic box containing drugs, and also on a small brown glass bottle and on a piece of tinfoil. The glass bottle had contained acetic anhydride. No prints attributable to Mr Strange were located on these items. The Police also found a Police scanner in the kitchen of the home. There was evidence that at this time the appellant had said to Strange “whose is the shit in the bedroom” and Strange answered “it must be mine”.
[5] The appellant made a written statement to the Police to the effect that she had no knowledge or idea of what her partner was (or others were) up to. She said that she was unaware of the stolen property or the firearm in the house and had no knowledge of any of the morphine sulphate tablets or acetic anhydride. She said that the ammunition belonged to a friend of Mr Strange who used it for hunting. There was evidence, hearsay but admitted, that Mr Strange told the Police that the morphine sulphate tablets, chemicals, cash, tools and firearms belonged to him.
[6] Cross-examination of a Police officer by defence counsel, elicited evidence, generally although not entirely hearsay, but admitted without objection by the Crown, that Mr Strange had admitted to the Police that all the incriminating items were his. In addition he said that he had purchased the stolen tools from a garage sale in Hornby. There was evidence of a conversation between the appellant and Mr Strange at the Sydenham Police Station when the appellant said “am I going to take the rap for this or are you going to put your hand up?” Mr Strange is alleged to have said, “it’s all mine”. Defence counsel further obtained evidence, in cross-examination of Police witneses, that Mr Strange was dependent on drugs; that he had pleaded guilty to the charges of possession for supply of morphine sulphate, possession of acetic anhydride, possession of the firearm and ammunition, and receiving; and that had been dealt with by the Court.
[7] The appellant did not give evidence at her trial, and does not now contend that she wished to do so. She had made a detailed exculpatory statement to the Police and her position at trial was that it had not been proved that any of the items at the property were in her possession, she having no knowledge of them. The Crown case was it was inherently improbable that all of the property could possibly have come into her home without her knowledge. It emphasised that none of the morphine sulphate tablets were of a kind that she had been prescribed, there being a very substantial number of them and that the appellant’s fingerprints were found on a pill bottle inside a box which contained drug dealing paraphernalia as well as being on the inside of the black plastic bag in which drugs were contained.
[8] The appellant faced some special difficulties in relation to the firearms and ammunition counts. The Crown did not have to prove possession of those items by the appellant, if it proved that she was the occupier of the premises and on which the firearms and explosives were found. Section 66 of the Arms Act 1983 provides that everyone in occupation of any land or building on which a firearm or explosive is found is deemed to be in possession of those items unless she proves that it was not her property and that it was in the possession of some other person. The Crown obviously proved the firearm and ammunition were explosives, and the appellant was in occupation of the premises in which they were found, and indeed that was conceded. The jury were directed that the appellant had to satisfy them on all the evidence that it was more probable than not that the firearm and ammunition were not her property, that she knew nothing about it and whilst, as counsel conceded, she knew about the ammunition (as it was on top of the fridge) it was there she believed for an innocent purpose.
[9] The jury was directed carefully by the trial Judge as to the requirements that the Crown had to prove beyond reasonable doubt in respect of all counts. The evidence, although circumstantial, was sufficient to enable the jury to conclude that the appellant not only was aware of the stolen property but also had received it herself along with Mr Strange, and further that she was jointly in possession, with him, of the precursor substances, drugs, firearms and ammunition. Trial counsel conceded that if the Crown had established that the appellant had possession of the drugs for the purpose of supply and possession of the precursor substances then it logically would follow that she knowingly permitted the premises to be used for the purpose of commission of the offence. The jury’s verdicts make it clear that they did not accept the appellant’s denials to the Police Officer as to her knowledge of any of the items.
[10] Trial counsel also conceded that the verdict should be one of guilty on the count of knowingly permitting premises to be used for the commission of an offence under the Misuse of Drugs Act 1975 because the appellant herself, in her statement to the Police, had acknowledged that she was aware Mr Strange was taking drugs in her home. To that extent the concession was proper and no quarrel is made with that.

Affidavit evidence presented on appeal

[11] The appellant filed an affidavit herself in which she was critical of the manner in which defence counsel handled her case. Generally she complains he did not see her on many occasions; that she had wished him to call Strange to give evidence; that he had not interviewed Mr Strange so as to brief his evidence; that a crucial error was made by counsel in not calling Mr Strange as a defence witness; that on the day of trial she was ill and unable to concentrate or act rationally (apparently because on the morning of trial she had taken a large dose of methadone) and counsel erred by failing to seek an adjournment of her trial. An affidavit was tendered from a prison escort generally to the effect that the appellant, on the day of her trial was unwell, very tired, kept falling asleep and did not seem to be able to concentrate or communicate sensibly. She also presented an affidavit from Mr Strange in which he says that he was expecting to give evidence and would have done so to the effect that he alone was responsible for all items found by the Police and the appellant knew nothing of them. His evidence, he says, would have been consistent with his statements to the Police.
[12] The appellant’s former counsel filed an affidavit refuting the allegation that he made serious errors. He says that the appellant’s defence was quite straight forward, being a denial that she had knowledge of any items found in the home and therefore could not have been said to be in possession of them. He says he did not receive any instructions from her to seek an adjournment, and that there was no basis upon which such could have been sought. The appellant had simply failed to appear at Court for her trial and a warrant was issued, which led to her being brought to the Court in a somewhat fragile physical state. However, it does not seem that she was required to give any further instructions to her counsel, as an informed decision had been made not to call her to give evidence but to call Mr Strange. Former counsel deposes that he was never instructed or directed by the appellant to call Mr Strange as a witness, but that he had arranged for him to be present in anticipation that he might be called. He says that, as a matter of judgment, he elected not to do so.

Legal principles

[13] These are well known. As this Court observed in R v S [1998] 3 NZLR 392 (CA) the Court must guard against any tendency on the part of accused persons who have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel. However, two principal ways in which an appeal based by counsel’s conduct at the trial can succeed have been recognised. One is where counsel fails to follow instructions, and the other is where counsel has made a radical mistake.
[14] First, as to failing to follow instructions, the Court said, (at page 394):

A counsel does not have the right to disregard instructions from his or her client. See R v McLaughlin [1985] 1 NZLR 106 at p107. If appropriate advice has been given to the client, counsel’s proper course is either to act on his or her instructions or to withdraw from the case. But the duty of counsel to follow a client’s instructions must necessarily depend upon the way in which those instructions are expressed or conveyed .... It must be clear that the instructions were not simply an expression of the client’s views on a particular matter but were intended to be directions to be observed and implemented b counsel. They are then to be followed irrespective whether they would or might rebound to the client’s disadvantage. It is not enough, for example, for an accused to tell trial counsel that he or she “wants” or “wishes” a particular witness to be called. See Byford v R (Court of Appeal, Wellington, CA74/93, 25 June 1993) at pp3-4. Moreover, once it has been established that counsel failed to follow the client’s instructions, the appellant must show that the failure led to a miscarriage of justice.

[15] Secondly, if a mistake on the part of defence counsel is so radical that a miscarriage of justice is likely, then an appeal would be allowed. But in order to establish a miscarriage of justice an appellant must show that the mistake could well have had a significant prejudicial effect on the outcome of the trial; R v Horsfall [1981] 1 NZLR 116, at 123; R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109 (CA).

As to the failure to seek an adjournment

[16] There is no substance to this point. Whilst it may well have been that the appellant may have been unwell, it was not suggested that she was required or wished to give any instructions to counsel on the day of trial. Nor is it suggested that she gave him instructions to seek an adjournment. The argument is presented simply on the basis that she was “in no fit state” to comprehend the trial process and that the jury may have been influenced in its assessment of her by the way she may have presented if it had noticed. She and her counsel had earlier determined that she would not be giving evidence. If an application for adjournment had been made by counsel it does not follow it would have been granted, and if it had been refused there would have been no right of appeal.
[17] It is speculative to conclude that the jury would have taken an adverse view of the appellant because, indeed, they may, if they had noticed her physical condition, equally have been sympathetic to her. The Judge gave the jury the usual directions to put aside any feelings of prejudice, concerns or strong emotions on the question of drug taking and emphasised that the appellant was to be tried on the evidence unaffected by any prejudices.
[18] We are satisfied that no error of counsel arose in not seeking an adjournment or that any miscarriage of justice may have occurred through the trial proceeding.

As to the failure to interview, brief the evidence of, or call Mr Strange as a defence witness

[19] Mr Strange had made a number of statements to the Police both in the presence of the appellant and separately at the Police Station. The appellant’s counsel had the details of the statements and had discussed the case with Mr Strange’s counsel. It is common ground that he did not independently interview or brief the evidence of Mr Strange, but that he had arranged for him to be brought to Court for the purpose of giving evidence if necessary. He knew that according to Mr Strange, the appellant had no knowledge of the incriminating items. Perhaps it may have been wise for the appellant’s counsel to interview Mr Strange but, as matters turned out, the fact that he did not do so is really immaterial.
[20] It was during the cross-examination of Police Officers that trial counsel was able to have introduced into evidence the statements or claims of Mr Strange that all items were his and that the possession for supply of the Class B drug was all his own doing and not that of the appellant. The jury was able to know that Mr Strange had pleaded guilty to all of the crimes with which the appellant had been charged and had been dealt with by the Court.
[21] Much of that evidence of course was hearsay, yet its introduction in cross-examination was without objection from the Crown. In essence trial counsel was able to have the defence case or position introduced, or at least reinforced, in the course of the Crown’s evidence. As a consequence trial counsel made the decision not to call Mr Strange, despite he having originally intended to do so. He felt that there was sufficient factual basis to support the defence. The evidence was before the jury and little purpose would be served by calling Mr Strange to give evidence along the same lines, with him being subjected to cross-examination. Such carried with it a risk of incriminating the appellant.
[22] A clear judgment or tactical decision was made by trial counsel having in mind the risk that if Mr Strange gave evidence on oath it might well not, in the end, aid the appellant’s case. Mr Strange would have been open to exposure as to his relationship with the appellant, how long he had lived with her, what discussions he had had with her about items found in the house; the drug use of both of them; items found in their bed; her knowledge of the Police radio scanner and so on. As counsel deposes there was evidence known to counsel, but not so far introduced in the trial, as to Police surveillance of the property disclosing a high volume of visitors to the home.
[23] Trial counsel deposed that he did not expect the trial Judge to emphasise to the jury that Mr Strange’s statements were neither on oath nor subject to cross-examination, saying that he had no way of knowing the Judge might comment adversely. That view is perhaps surprising. Yet it does not follow that the decision not to call Strange was clearly wrong and, if so, resulted in a risk of miscarriage of justice occurring. Cross-examination of the witness, on oath, may well have been more damaging than the Judge’s comment.
[24] Often counsel have to make decisions quickly in the course of a trial, which with hindsight may bring forth another’s opinion that they were incorrect. Yet it is not an adverse outcome that determines the correctness or otherwise of the decision. Mistake in tactics in the conduct of the defence is not a ground for a new trial unless they are radical and may have led to a wish of a miscarriage of justice. When equally reasonable choices of action are available, who can say to that to decide on one rather than the other, is clearly wrong? Where matters are essentially matters of judgment it will be rare for the Court to conclude that the exercise of that judgment falls into the category of radical error to the extent that the ground (miscarriage of justice) specified in s385(1)(c) of the Crimes Act 1961 is made out.
[25] Counsel argued that the errors in failing to call Mr Strange were compounded because trial counsel misunderstood the effect of the reverse onus applying to the appellant in terms of s66 of the Arms Act 1983. It was argued that trial counsel put the defence to the possession of firearms and ammunition charges on the basis that if the jury thought it possible that the appellant did not know about the gun then she was not guilty, whereas the Judge correctly directed the jury that if she might have known of the presence of the gun but equally might not have, then she would not have proved that it is more probable than not that she did not know it was there. So, it was submitted, radical error existed, so as to give rise to a risk of miscarriage of justice.
[26] Counsel accepted an accused does not necessarily have to rely on his or her own evidence to satisfy the onus required by s66 but contended that it was crucial to the appellant’s defence on those charges that Mr Strange be called. But the difficulty trial counsel faced was that if Mr Strange was called to give evidence only on the issue of the appellant’s knowledge of the firearms and ammunition, he remained open to be cross-examined across a wide area in which direct evidence, or further strong circumstantial evidence, of the appellant’s knowledge and participation in other serious drug matters may well have been extracted.
[27] We think the position is that described in Police v Kings Work Trust [1990] 1 NZLR 45 at 57, in dealing with the reverse onus required to rebut the statutory presumption:

The Court may be satisfied by any evidence at all and it is in my view quite conceivable that a Court might be satisfied by the evidence called by the prosecution, particularly if the defence was able to secure the necessary answers under cross-examination.

[28] That evidence may be exculpatory statements of an accused and, as here, evidence of pleas of guilty by others and their claims that they alone were in possession. Although it may be that some of the evidence or answers elicited in cross-examination were clearly hearsay and subject of comment by the Judge to the jury, said to lessen its effect, but it does not automatically follow that a jury would disregard that evidence. A jury can make its own assessment on all the evidence and material before it (including the exculpatory statement of the appellant). Fine distinctions in areas such as this, as to correctness or otherwise of decision made during trial are not appropriate in deciding whether radical errors have been made.
[29] We are satisfied that the decisions trial counsel made were matters of judgment on his tactical handling of the appellant’s case. They were decisions he was entitled to make in the circumstances that arose. His decision not to call Mr Strange may not necessarily have been made by others, but it still could not be said to have been erroneous so as to run the risk of miscarriage of justice occurring. It could equally have been said that had he elected to call Mr Strange, such was an erroneous decision if it were that disastrous evidence emerged in cross-examination, and conviction of the appellant had followed. This is not a case of failure to follow instructions, such not having been specifically given or required. It is simply a case of counsel exercising, as must invariably be the case in similar trials, judgment on matters about which it is easy to be critical in hindsight, but which are perfectly acceptable in finely balanced situations such as occurred here.
[30] It has not been shown that either individually or cumulatively there were errors or mistakes made by trial counsel so as to make the verdicts unsafe. Rather there were judgment calls made by counsel, with which some may not agree but equally with which some others might agree. No error or mistake of a radical nature arose so as to raise any risk of miscarriage of justice in this case.

Decision

[31] It follows that for these reasons the appeal must be dismissed.

Solicitor
Crown Solicitor, Auckland for Respondent