THE QUEEN v ANDRE MIRATANA [2002] NZCA 297 (4 December 2002)

IN THE court of appeal of new zealand

CA 102/02

THE QUEEN

V

ANDRE MIRATANA

Hearing:	25 November 2002
Coram:	Glazebrook J Baragwanath J Randerson J
Appearances:	T M Petherick for Appellant J C Pike for Crown
Judgment:	4 December 2002

judgment of the court DELIVERED BY BARAGWANATH J

[1] The appellant challenges on appeal his conviction following a jury verdict in the District Court at Napier on 6 March 2002 of possession of cannabis for supply.

[2] The two day trial was opened on the morning of 5 March 2002 with the appellant's acceptance that he had been in possession of what the Crown evidence established to be 75 grams of cannabis plant.The evidence was completed the same day.The sole issue in the case was whether the appellant had discharged the onus cast on him by s6(6)(e) of the Misuse of Drugs Act 1975 to prove that his possession of more than the 28 grams which triggers a statutory presumption was not for the purposes of supply.

The evidence

[3] On 4 October 2001 the police executed a search warrant at the appellant's premises.In a small tin shed were a small quantity of cannabis leaf, a plastic container known as a bong, a device that enhances the effect of inhaling, which smelt strongly of cannabis and had recently been used, and seven cannabis roaches (the expression used for the butt of a cannabis cigarette which still contains cannabis).In the north-western corner of the appellant's section were five cannabis plants contained in four punnets and a further 28 individual punnets, of which eight were later found to be growing cannabis plants. After the seedlings were found the following exchange took place between Detective Constable Bagley, who was responsible for executing the warrant, and the appellant:

Question: Do these contain cannabis seeds and plants?

Answer: Only the back seven containers of cannabis plant.

Question: Did you plant them?

Answer: Yes.

Question: Who owns this house?

Answer: I'm not exactly sure.

Question: Do you rent the house?

Answer: Yes.

Question: How long have you lived here for?

Answer: Five years.

Question: Who else lives here?

Answer: My son sometimes and my partner and children.

Question: Whose use is the cannabis for?

Answer: Personal use.

[4] The search then moved to the appellant's house.The detective constable informed the appellant of his rights under the New Zealand Bill of Rights Act 1990 and cautioned him.He recorded the following question and answer:

Question: Do you have any drugs here?

Answer: Yes.

[5] The appellant immediately led him through the kitchen into the dining room to a cane stand in which was a small flax bag which held a small plastic bag containing green cannabis leaf.In the lounge the appellant handed the officer a small backpack.It contained 17 foil-wrapped cannabis "tinnies" or "bullets", a small rectangular sealed plastic container with 13 tinnies, together with a small metal skewer, and a second small rectangular plastic box containing 5 grams of cannabis leaf.That box also contained four pieces of cut tinfoil of the size needed to wrap up a cannabis bullet. A cannabis bullet was found by itself in the front pouch of the pack.In another part of the pack were a further 34 cannabis roaches.In the dining room was a Samson tobacco tin containing 122 cannabis seeds.In a bedroom at the end of a hallway a wardrobe contained a plastic bag with 65 grams of cannabis leaf.

[6] In relation to the contents of the pack the detective constable asked the appellant:

Who rolled them up into tinnies?

He received the answer:

That's all I want to say, I don't want to answer any more questions.

[7] A written statement was then taken in which the appellant acknowledged planting the cannabis and using the bong 1½ hours previously.He acknowledged that he owned cannabis.He asserted that it was for his own use.

[8] The detective constable confirmed in cross-examination that when he arrived at the address a man believed to be the appellant's brother was present, as was a female.He asked:

And the two of them were in the shed partaking in the smoking of cannabis?

He responded that he did not actually see them but believed that they might have done so.The officer confirmed that a thorough search of the premises had located no money, no scales, no "tick book" (or list of customers), no cellphone or pager, being items commonly used by drug dealers, no weapons or vicious dogs.The appellant had one prior conviction of possession of cannabis in 1987.

[9] Expert evidence was given by Detective Greville, an experienced officer with considerable familiarity with drug cases.He deposed that the bullets had a street value of some $20 each.He said he had never come across a cannabis user who had packaged such a number of tinfoil bullets for his personal use and deposed that suppliers are careful not to be caught with a tick book or scales.

[10] Detective Greville accepted that the 65 grams of cannabis leaf found in the plastic bag was likely to be discarded as "cabbage".The officer was unable to generalise about the use of cannabis by Rastafarians.He agreed that tinfoil is used both to keep cannabis dry and because it is a convenient and portable size, perhaps a day or two days supply for a heavy user.He added that tinnies are usually bought one at a time.

[11] The appellant elected to give evidence.He gave an account that he had been a Rastafarian since the age of 16.He asserted that cannabis is used by Rastafarians as the equivalent of a Christian sacrament and that they regard the bong as a chalice by which they take what they call the "bread of life". He denied that he and his co-religionists would sell marijuana, something he said would be inconsistent with their religion.He said that the cannabis bullets were the end result of the harvest for the previous summer's crop and assisted him to ration it out to make sure he did not use too much.

[12] He stated that the cannabis roaches resulted from consumption in which he had been involved.In examination-in-chief he indicated that he would use something like a fistful of cannabis a day.Cross-examined, he asserted that the contents of only one tinnie would fit inside his hand, as he had gestured.

The character evidence

[13] The appellant called a friend who is an orchadist and packhouse owner near Havelock North, for whom the appellant had worked as head forklift driver every apple season.She said she found him to be totally reliable.Asked her attitude to cannabis dealing, she responded that she didn't think the appellant was a dealer although suspected that he smoked cannabis.She believed that had he been a dealer she would have been told by staff.Her inference that he smoked was that he is a professed Rastafarian.Crown counsel referred to the large degree of concentration needed during the 12 hours a day, six days a week, forklift operation.We take the Crown suggestion to be that the appellant could not, during that period, have been using cannabis and, no doubt, that the case that the cannabis was exclusively for personal purposes was false.

[14] A second character witness lived across the road from the appellant and deposed that there was no pattern of unfamiliar visitors to the appellant's property.Asked whether her assessment of his character was consistent with that of being a drug dealer, she replied "not really"; that she thought he smoked that stuff in private for himself.

The grounds of appeal

[15] The appellant advanced four grounds of appeal:

[a] Reference by the Judge in his summing up to matters that had not been referred to in evidence.

[b] Blurring issues of fact and law.

[c] Misdirecting the jury upon the character evidence.

[d] Failing to put the defence.

Discussion

[16] In the course of argument the first and third grounds appeared insubstantial.

Ground 1

[17]The first was a response to the defence submission that there were no previous customers called by the Crown to say they had bought drugs from the accused.The Judge's response:

You may wonder how on earth the Crown would ever find out who the customers were let alone adduce them to give evidence.

would not have been understood by the jury as an illegitimate expression by the Judge of inside knowledge but as a response to the logic of the appellant's submission.So construed it was legitimate.

Ground 2

[18] The direction concerning character witnesses was conceded by Mr Petherick to be in accordance with R v Falealili [1996] 3 NZLR 664.The point to which exception was taken was the subsequent comment by the Judge:

...of course you have got to make a sensible evaluation of the character evidence and say:

"Well, really where does this take us?Does it bear on the case and the issues which we have to decide?"

And you will do that having regard to what you have heard in evidence yesterday.

It was suggested that the Judge had identified himself with the jury and that added weight to Ground 3; in the printed case the second inverted commas appeared after the phrase:

...where does this take us?" (emphasis added)

[19] But we are satisfied that the correct punctuation is to include the following sentence within the quotation, which is how the matter would have been heard by the jury.So construed the direction was a sensible and practical one to which exception cannot properly be taken.

Ground 3

[20] The complaint that matters of fact and law had been blurred was largely verbal.The summing up commenced:

Members of the jury let us proceed to make our way through those legal principles that have to be applied in the course of your deliberations.There are just a few of them in this case.They are perfectly straightforward and they must be adhered to in this trial, as in all trials of the kind.

Towards the end of the summing up appeared the sentence:

Now those are the legal principles to be applied members of the jury.

Mr Petherick submitted that the jury would have taken from this that the whole of the Judge's summing-up as consisting of directions of law and that as a result what he said about the respective cases would have been seen as unduly favouring the Crown.Again there is a point of punctuation.As the sentence appears on the final page of the case it has been expressed as the commencement of a new paragraph.Mr Pike submitted that it makes better sense if the final sentence of the preceding paragraph, containing appropriate directions, completed the Judge's summary of the defence case.We agree and have adopted that form when reproducing the passage at para [29] below. But whichever way the punctuation is read, we do not regard that point as substantial.

[21] But the argument that the summing-up consisted of directions of law that they were obliged to follow, including what he said about the parties' cases, does not meet the fact that the Judge took care to direct the jury appropriately as to their fact-finding function.Immediately following the initial paragraph appeared the direction:

Having said that of course you have a completely free hand when it comes to the evidence as distinct from the legal principles.When it comes to the evidence it is entirely up to a jury what is accepted and what is not.You make all those decisions concerning the evidence and where it should lead you...

It was reinforced by later passages.We are not impressed by the point.

[22] Of greater concern is the Judge's leaving to implication the fundamental direction at the commencement of the summing up that he was the judge of matters of law so as to provide a clear antithesis with the function of the jury, which he then described in appropriate terms.The failure to commence the summing up according to the passage we have italicised in the classic formulation of R v Fotu [1995] 3 NZLR 129, 138 warrants criticism:

For many years it has been common in New Zealand for Judges summing up to juries to begin with a warning that they must decide solely on the evidence, putting out of their minds anything that they might have heard about the case outside the Court; to explain the onus of proof and the respective functions of Judge and jury; to explain the necessary legal ingredients of the offence or offences charged and to give any other necessary directions on the law; and in reviewing the evidence to summarise the contentions on each side. The order is not mandatory, but it is convenient and none of those steps can safely be omitted.

[23] Because we are satisfied that the jury would have inferred the Judge's role we do not accept the summing up is vulnerable in this respect.But while itself of no great weight it is relevant to the ground of failure fairly to put the defence, the point we have underlined in the citation from Fotu and to which we now turn.

Ground 4

[24] As stated in R v Henriksen (CA 463/99, 26 June 1999):

Putting the defence case

[8] In every trial by jury it is the obligation of the Judge to ensure that the essential issues in the case are placed clearly before the jury prior to their retirement.

[9] The obligation is usually discharged by

the now conventional practice of [the judge in summing up] reviewing the case for the Crown and for the defence by reference to the points made by counsel on behalf of the parties (R v Foss (1996) 14 CRNZ 1 at page 4)

a course which the applicants submit was not followed in this case.

[25] The question here is whether the essential issues in the case were placed before the jurors in the summing up with such clarity and in sufficient detail as to allow them properly to perform their function.

[26] It is desirable to comment briefly on the Judge's role in summing up. The reason for "reviewing the evidence to summarise the contentions of each side" (para [22] above) is to provide lay jurors, performing an unfamiliar task with people they do not know and are unlikely previously to have met, to receive the assistance from the professional Judge that will allow them to focus on their function and on the issues they are to determine.It is ordinarily insufficient for a judge to dispense with the summary of competing contentions, notwithstanding that the jury have, at the immediately prior stage, heard the opposing contentions from counsel.What is said in a summing up is stated by the presiding judicial officer ex cathedra, from a position of authority, with the influence that his or her role as judge will carry in their eyes.A judge must therefore be scrupulous in maintaining balance in presenting the issues to the jury.The balance referred to is not an artificial equalising of the competing cases, which are likely to be of different weight, but providing a careful synopsis of the major points advanced on each side.It is no part of the Judge's task to summarise the whole of counsel's submissions, which in many cases will be lengthy.The responsibility is to distil and express the major points so that the collision between the cases is seen by the jury in sharp focus when they retire to consider their verdict.

[27] Where a fundamental part of the defence case is omitted, there is risk that the jury will infer that the Judge is unimpressed with it.Where, as here, the Judge has in addition omitted stating with clarity the scope and limits of his own function, the jury is at greater risk of misapprehending the true nature of the dispute they are required to determine.

[28] The Crown case, based on the 28 gram presumption, was clearly put to the jury as was its supporting evidence and in particular the packaging into the 30 separate "tinnies".The jury was directed:

In all of these matters you are entitled to act on logical inferences based on the proven facts.Often there will be direct evidence of what was found or what was happening which leads on to fair and reasonable deductions or inferences based on those proven facts.Here the Crown points to the packaging.30 separate packages of cannabis rolled up in a way consistent with an intention that it be sold, all of about equal weight and the Crown really asks you for an inference to be drawn from that that sale was at least part of the purpose of this whole undertaking.So there is an example.The proven fact that there are 30 little aluminium tubes lined up containing cannabis, that fact of itself does not directly prove that sales were intended, but it does give rise, says the Crown, to a safe deduction that that was the case for at least some of them.So there in this case is an example of the way in which juries are called on to draw deductions.Deductions of course are only matters relating to the evidence after all, and whether you do that is entirely up to you, applying your common sense.

...

Now the Crown case here is quite simple.Mr Collins says that as a matter of law the onus or responsibility has now moved on to this accused to show that no part of this cannabis was intended for sale.And then, says Mr Collins, just look at the packaging, 30 virtually identical packages in a form which are known to be associated with street level drug dealing, Mr Collins says that there is an inference there which you can safely drawn and it will stop this accused satisfying you that no part of this was for sale.Finally, says Mr Collins, pointing to some of the defence evidence, if this is a four joint a day man he has certainly done a pretty good job of hiding that from his employers.

...

[29] We have numbered the paragraphs of the Judge's account of the defence case, which was as follows:

[1] The defence case begins with consideration of Detective Greville's expert evidence about what means what in the drug world and Mr Petherick points out correctly that while Mr Greville may have expertise, he doesn't know this particular accused and he was not involved in this particular investigation. And that much is true.You are entitled to take that into account in deciding what weight Detective Greville's evidence should have in the matters you have got to decide.

[2] Mr Petherick points out that apart from the packaging, which he agrees is suspicious, there is no other evidence of drug dealing.There is no "tick list" of clients who haven't paid, no cell phones or pagers which apparently now have a place in the drug dealing world, and there is no evidence of a high lifestyle.Well you have heard the evidence on that members of the jury.It is up to you to decide what relevance it has got and then how much weight it should have in this particular case.

[3] Mr Petherick also points out that there are no previous customers coming along to say they have bought drugs from the accused.Well, that is up to you too.Yesterday you watched Mr Collins try to find out the names of people who might have been involved in some sort of supply to the accused, and you may wonder how on earth the Crown would ever find out who the customers were let alone produce them to give evidence.It is a matter for you how much weight the absence of evidence of previous customers has in a case such as this.But bear in mind that as the Crown points out, it is the accused who has to show more likely than not that no part of this was for sale.The Crown does not have to show that it was, except by showing you that there were more than 28 grams of cannabis in the possession of the accused.

[4] There was, as I heard Mr Petherick's closing, some challenge to the issue of just what weight cannabis really was found in this case.Now I have to remind you here of a couple of things members of the jury.First of all, it is not for an accused person to pick and choose what cannabis gets weighed.If the scientists say it is cannabis, and that is accepted here, then it all gets weighed.It might be good cannabis, bad cannabis or cannabis in between, it has all got to be weighed.Now Bagley has told you quite directly that he weighed it and he has told you how much it weighed and it certainly weighed a lot more than 28 grams.Greville's expressed certain opinions looking at certain parts of it and questioned whether those parts weigh what might have been suggested, but he hasn't weighed it himself.And you may well think as a jury whose responsibility it is to decide what weight should be given to the evidence that the great preponderance of evidence in this case is to the effect, the weight of the evidence is to the effect that there were more than 28 grams of cannabis here.It is up to you to decide that but bear in mind, Bagley actually weighed it, Greville is simply looking at photographs, and Bagley has told you what he says it weighs.Now those are the legal principles to be applied members of the jury.

...

[30] The appellant's submission is that there is nowhere a clear unvarnished account of the essential defence contained both in the appellant's initial interview and statement and given and adhered to in his evidence, that the appellant's possession of cannabis was for his own use. Support for that proposition was to be found in the evidence of the roaches, signifying his past consumption and the evidence that he and his brother had been consuming cannabis an hour and a half before the police raid.His account of being a Rastafarian and the significance that possessed in his life was a further vital part of his defence but was also omitted.

[31] We agree that there is no mention whatever of this core of the defence case. The passages focused on by the Judge in the paragraphs we have numbered 1, 2, 3 and 4, wholly omitted reference to that and dealt only with matters that were not at its heart.Paragraph [1] reminded the jury of Detective Greville's expert evidence and the defence response.Paragraph [2] referred to the pointers to drug dealing that are absent in this case.Paragraph [3] referred to the defence submission about an absence of previous customers and the Crown's response.Paragraph [4] referred to the question of weight of the materials and, again, the Crown's response. The Judge was entitled to include in paragraphs [2-4] negative comments by way of potential Crown responses to the aspects of the defence case they covered.But by doing so he accentuated the need to balance his helpful statement of the strengths of the Crown case with a similar statement of the defence case.Nowhere did the Judge put succinctly the defence case as a whole in the way he had done for the Crown case.

[32] We have reflected on Mr Pike's submission that this was a short case and it is unlikely that the jury failed to understand that the crucial issue was whether the appellant had established on balance that he was not a dealer.We have considered also the point advanced in certain Australian authorities that there was no complaint by defence counsel at the conclusion of the summing up.

[33] It is true that as an officer of the Court it is defence counsel's responsibility, as it is that of Crown counsel, to inform the Judge of any error or omission.Mr Petherick candidly told us that he did feel uneasy about the Judge's failure to put the essence of the defence with particularity but as counsel of relatively recent call was diffident about intervening.It is worth observing that it is the right and responsibility of every counsel of whatever standing to advance in the absence of the jury points he or she conscientiously considers to be omitted from the summing up that are required in the interests of a fair trial.We add that there is no question here of tactical non-intervention or of counsel's acting otherwise than in complete good faith

[34] Our task is to evaluate the case overall and decide whether, in terms of s358(1)(c) of the Crimes Act 1961, there has been a miscarriage of justice. The verdict of guilty was well open to the jury on the evidence but it was by no means inevitable.The fact that the appellant carried the onus of proof on the critical issue meant that he could not have recourse to the usual fundamental direction as to theCrown's onus of proofbeyond reasonable doubt that may in some cases avoid miscarriage.We have concluded that there has occurred such clear and unfortunate breach of the Court's responsibility for presenting the defence contentions in fair balance to those advanced by the Crown, in a case where a balanced summing up could have led to a different result, as to entail miscarriage of justice. There can be no basis on the present facts to apply the proviso.

[35] The appeal is accordingly allowed and the conviction quashed.There being sufficient evidence to justify the Crown's bringing the case the result would ordinarily have been a further trial. But since the appellant has served his six months sentence we do not order a retrial.

Solicitors

Gresson Grayson & Calver, Hastings

Crown Law Office, Wellington