The Queen v Samuels [2001] NZCA 50; (2001) 18 CRNZ 566 (22 March 2001)

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA35/01

THE QUEEN

V

CLEON MAY SAMUELS

Hearing:	21 March 2001
Coram:	Tipping J Robertson J Young J
Appearances:	G R Anson for Appellant D J Boldt for Crown
Judgment:	22 March 2001

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] This appeal is against conviction on four cannabis related charges after retrial in the District Court at Whangarei. The appellant’s first trial was aborted when her counsel drew attention to a problem with a certificate issued under s13A of the Evidence Act 1908 protecting the identity of an undercover police officer. The jury was discharged and a new trial was ordered. The appellant was subsequently retried and convicted on all charges. She submits on this appeal that her retrial was a nullity or alternatively that there was a miscarriage of justice. We propose to deal with these points as one issue: did the Judge at the first trial have jurisdiction under s374 of the Crimes Act 1961 to discharge the jury and order a new trial?
[2] The appellant was being jointly tried with her husband on two counts of selling cannabis, one of possession of cannabis for sale and one of possession of a firearm. The charges arose out of a police operation conducted in Northland between May and November 1999 involving an undercover policeman, known as Anthony James Peters. Mr Peters made contact with various people and the first two charges arose out of sales allegedly made by the appellant to him. The second two charges arose out of a police search executed at the appellant’s home on 23 November 1999 on the termination of the police operation. Four ounces of cannabis packaged in deal bags and a tin containing cannabis were found in a cupboard, together with a .22 rifle.
[3] The first witness for the Crown at the appellant’s trial was the undercover police officer. He gave evidence under his assumed name of his dealings with both of the accused and sought leave, which was granted, to refer to the notes which he had made during the course of the operation. The officer was then cross-examined by counsel for the appellant. Several minutes into the cross-examination, counsel raised an objection to the Police Commissioner’s certificate issued under s13A of the Evidence Act 1908. A certificate is provided by the Commissioner in proceedings involving undercover officers justifying their anonymity. It certifies:

• That during the period specified in the certificate the witness was a member of the Police and acted as an undercover Police officer.
• That the witness has not been convicted of any offence.
• That the witness has not been found guilty of an offence of misconduct or neglect of duty under the Police Act 1958.

[4] The certificate was said to be invalid on two grounds. First, that it purported to be photocopy of an original certificate, and secondly that the photocopy purported to be signed on 11 November 1999, yet referred to the period 24 May 1999 to 23 November 1999. The Judge held that the certificate was invalid as follows:

Mr Anson has drawn my attention to the fact that subsection (9) [of section 13A] refers to service of a copy of the certificate at least 14 days before the witness is to give evidence. He therefore submits that the intent of the section is that the original certificate be filed in the Court. It appears that in this case no such certificate was filed. I accept Mr Anson’s submissions in that regard. I have not heard from Mr Samuels, but I understand that he joins in Mr Anson’s submissions.

[Crown counsel] pointed out that this was a large drug operation and the filing of original certificates may cause difficulty.

I can see no reason why an original certificate cannot be filed in each Court in which the proceedings are being held, and if necessary for the sake of the individual trials, a copy be produced duly certified by the Registrar with provision for the original to be produced if there is any question. But in my view it is essential that that original be filed in the Court in which the proceedings are to be held. For that reason I consider that the certificate is invalid.

But even if that were to be considered but a technicality, of greater concern is the problem with regard to the date. The certificate is dated some 12 days prior to the expiration of the operation. There is no way that the Deputy Commissioner of Police can certify into the future that the witness was a member of the Police and acted as an undercover Police Officer. As Mr Anson said, that is a nonsense. I agree.

[Crown counsel] submitted that the time period may be severable in that the first alleged cannabis sale was prior to the 11th of November, and that this certificate may only be invalid as far as the evidence relating to the second cannabis sale is concerned. I do not see any way in which the certificate can be severed. Accordingly, I must hold that the certificate is invalid and therefore the witness cannot claim the protection afforded by s13A.

[5] As a result of this ruling, which left the undercover officer with no sure protection against being called on to state his real name, Crown counsel indicated that the trial could not continue and sought a discharge of the jury under s374 of the Crimes Act. Counsel for the appellant opposed this application, arguing that there had been no “emergency or casualty rendering it...highly expedient for the ends of justice” that the jury be discharged. It was submitted that these words in s374 required that some chance event, unforeseen by the prosecution and out of their control, must have occurred. Here it was clear that the police were aware of problems with the certificate, and thus it was submitted that the situation was not beyond their control and that it would be strained to label the situation a casualty.
[6] The Judge reviewed the background to the enactment of s13A, and in particular the decision of this Court in R v Hughes [1986] 2 NZLR 129. Her ruling was as follows:

I consider that it would be adopting a strained and limited interpretation of the word “casualty” not to use that word to cover the present situation. The witness is prevented from completing his evidence because of a casualty resulting from the defective paperwork being filed by the Commissioner of Police. I am satisfied given the strength of the Crown case as it appears on the paperwork before me, that is the depositions and the evidence I have heard to date, including the cross-examination, that if the trial were not to proceed it would be contrary to the interests of justice. I consider, given those factors, it is highly expedient for the ends of justice to discharge the jury. Justice is not a one-sided factor, and as Chapman J in Binley and Walsh said when he referred to the trial being fair and proper between the prisoners and the country, it becomes expedient to the ends of justice that the matter proceed on a fair basis, and fairness is to both the community and the accused.

[7] We agree with the Judge's approach and cannot usefully add much. Section 374(1) of the Crimes Act 1961 is in the following terms:

374 Discharge Of Jury

(1) Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.

[8] A five Judge Bench examined the ambit of s374(1) in R v Livingston [2001] 1 NZLR 167, 176. The following passage from R v Tatana (1994) 11 CRNZ 708, 711 (CA) was cited with approval:

Although we may not have exercised our discretion in the way that the trial Judge did, we are nevertheless satisfied that he had jurisdiction under the section to do so. The words ‘emergency’ and ‘casualty’ are common words. It would be difficult to conclude that the circumstances in this case amounted to an ‘emergency’. ‘Casualty’, however, is defined in the New Shorter Oxford Dictionary as being ‘a chance occurrence, an accident, a mishap, a disaster’. The circumstances in which it may be desirable in the interests of justice to discharge a jury under s 374 are multifarious and possibly indefinable. We do not see any need to adopt a strained or limited interpretation of ‘casualty’.

[9] The Livingston Court also referred with approval to R v Thompson (Court of Appeal, CA182/85, 13 December 1985). The circumstances of that case, as Mr Boldt submitted, have some similarity to those of the present. After arraignment on a charge of selling cocaine to an undercover agent, the appellant sought a discharge on the basis that a vital piece of analytical evidence was hearsay. The analysis had been carried out by a colleague of the deponent. The Crown sought leave to have the substance re-analysed. The trial continued but the new analysis could not be completed within the time allocated for the trial. The Judge discharged the jury under s374. The appellant was re-tried and convicted and an appeal was brought from that conviction. In that case it was suggested that a miscarriage of justice had arisen as a result of the discharge of the first jury. The Court noted that had the point been taken before arraignment the circumstances could easily have been met by a further analysis. In those circumstances considerations of justice involving not only fairness to the accused but also the public interest in having the guilty so found, were such that the Judge was entitled to take the course he took.
[10] Although not analysed in the same way as the present case has been, the decision of the Court in Thompson to the effect that no miscarriage of justice occurred is material to the present circumstances. Mr Anson suggested that the point concerning the validity of the certificate in the present case could not have been raised as an admissibility of evidence issue before trial. It is unnecessary for us to go into that question. Whatever may be the position in that respect, the point arose at a time when it was apt to cause particular difficulty. The officer had already given his evidence-in-chief and was in the course of cross-examination when counsel raised the issue. It is not entirely clear what use counsel could have made of the officer's real name when in the middle of cross-examination but, as Mr Anson suggested, he was entitled to challenge the adequacy of the certificate even at that late stage. In the absence of a valid certificate he would probably have been entitled to ask the officer what his real name was, irrespective of the utility or purpose of that request.
[11] At the time the issue was raised, the Court was placed in a very difficult position. There could well have been an objection to the trial proceeding on the two counts with which the officer's evidence was not concerned because he had already given evidence which was irrelevant to those counts but highly prejudicial. Even if it was within the appellant's rights to raise the point without warning at the time it was raised, there was an element of ambush involved, see Livingston at 175-177. Counsel for the appellant was no doubt acting in his client's best interests, but the timing of the objection does have relevance to whether what happened can properly be regarded as a casualty. While the Crown was the author of the difficulty and was aware of it, we consider that what occurred can fairly be regarded as a casualty within the meaning of s374 as it has been interpreted in the line of cases identified and approved in Livingston.
[12] Hence the Judge had the power to discharge the jury and it cannot be said that the retrial was a nullity or otherwise flawed. Had we been of the contrary view we would nevertheless have been strongly inclined to apply the proviso to s385(1) of the Crimes Act 1961. The proviso may be applied in cases of nullity. That is inherent in the way s385(1) is expressed. The issue of the application of the proviso in nullity cases (assuming this case could have been so described) was mentioned in R v Accused (CA47/98) (1998) 15 CRNZ 622, 626. In spite of the caution there expressed, deriving as it did from R v Blows, unreported, CA103/95, 31 August 1995, we would probably have taken the view that the circumstances leading to the (assumed) nullity were not so fundamental or otherwise such as to preclude the use of the proviso.
[13] We would certainly have been of the view that no substantial miscarriage of justice had actually occurred. In spite of his best endeavours Mr Anson was unable to persuade us that any injustice to his client had arisen from the course which the proceedings took.
[14] The appeal is dismissed.

Solicitors
McLeod and Partners, Kerikeri, for Appellant
Crown Law Office, Wellington