THE QUEEN v MELISSA AMERIA RIKI [2002] NZCA 334 (19 December 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 310/02

THE QUEEN

V

MELISSA AMERIA RIKI

Coram:

Keith J

Anderson J

Glazebrook J

Appearances:

Appellant in person

A J Bull for Crown

Judgment (On the papers)

19 December 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]	This appeal is brought by the appellant in person in respect of her convictions on her trial before a District Court Judge and jury on 3 September 2001 on one count of selling cannabis and one count of possession of cannabis for supply.She was subsequently sentenced to six months imprisonment suspended for one year on each count, three months periodic detention and reparation of $20 paid to her by an undercover police officer for cannabis packaged as a “bullet” or “tinnie”. The appellant has been denied legal aid by the Legal Services Agency which considers that the appeal would not succeed.The Notice of Appeal was apparently prepared by the appellant herself.The entries on the standard form are confusing as to the scope of the appeal but additional material provided by or on behalf of the appellant specifies the following grounds, which appear to relate solely to conviction.
1.	It was wrong for the improperly instructed jury to convict as the identification evidence was unsafe.
2.	It is unlawful for the Police to use arrest solely for the purpose of detaining suspects for questioning.
3.	The two counts the accused faced were fabricated.
[2]	In support of the appeal there are detailed printed notes annexed to the Notice of Appeal, handwritten submissions, a letter from the Legal Services Agency declining the grant of aid, a fee note from a firm of solicitors issued in August 1996 in respect of a seemingly unrelated matter and a copy letter from the local Court Manager of the Rotorua Court concerning an alleged incident at the counter of that Court some ten months before the date of the offences for which the appellant was tried.
[3]	The Notice of Appeal is dated 22 July 2002.It was filed by the appellant in person, erroneously, in the High Court at Rotorua and bears the date stamp of that court indicating receipt on 22 July 2002, some nine months after sentence was passed.The fact that the notice had been filed in the wrong court was eventually brought to the attention of the appellant and the notice was then filed in this court, being received on 13 September 2002, some eleven months after sentence.
[4]	The appellant seeks leave to appeal out of time on the grounds that despite her instructions to her trial counsel to file an appeal he declined to do so on the basis that it had no prospect of success.Eventually she attended to the matter herself and, being unfamiliar with the process, filed the notice in the wrong court.
[5]	We are prepared to deal with this matter on its merits rather than confining attention to the procedural point of the granting of leave, having regard to the difficulties the appellant appears to have faced in connection with the appeal.These include, of course, the unavailability of qualified legal assistance in connection with the bringing and prosecution of the appeal.We therefore now formally grant leave and treat it as an appeal against conviction.
[6]	The appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, which include the documents previously mentioned, a copy of the appellant’s statement to the Police, and a transcript of the evidence presented at trial have been received in accordance with R29 of the Court of Appeal (Criminal) Rules 2001.They have been considered by the members of the Court who have conferred and agreed upon this judgment.
[7]	We are very conscious that the appellant is unrepresented by counsel and has experienced difficulty in advancing her appeal.But the issues are not complex, either in fact or law, and in the trial from the verdict in which she appeals she did have the benefit of counsel.We see no basis for revisiting the determination previously made in accordance with s392A of the Crimes Act 1961, that this appeal should be heard on the papers.Of course, as is invariably the case, the Court which so hears the appeal neither includes, nor is influenced by the view of, the Judge who made the determination as to mode of hearing

Facts

[8]	The only evidence given at trial was by police officers, the defence electing not to call evidence.Constable Winikerei testified that on 14 December 2000 she was engaged in a Police operation concerned with drug dealing.She went to 58 Koutu Road, Rotorua, at which address, it seems, there are two residences.She knocked on the door of the front house and receiving no response went to the rear premises where she encountered a woman with whom she had a discussion to the effect that she had heard that she could “score trips” from the address.She was told by the woman that if she wanted trips she would have to speak with the people who lived in the front house who, she had said, were her landlords.The discussion then turned to the question of buying cannabis.She asked if she could buy cannabis bullets from the woman and was told she could.A price was discussed, $20 each, and the police officer asked for one bullet.The woman then went and obtained a pencil case from which she took a cannabis bullet which she sold for $20.The police officer said she could see at least ten bullets in the pencil case.The money was exchanged for the cannabis.
[9]	A brief of evidence from another police officer was read by consent.It was shown by this brief that the tinnie received by Constable Winikerei contained approximately one gram of cannabis plant material.
[10]	Detective Sergeant Murphy gave evidence.He was the officer in charge of the particular Police operation and experienced in the investigation of drug dealings.Amongst other things, he deposed that “a trip” was a dose of the Class A controlled drug LSD and that the packaging of approximately one gram of cannabis in tinfoil is a method of sale, such products being known as “foils or tinnies and they are sold for approximately $20 to $30 per foil.”
[11]	Detective Constable Borrell testified that on 14 February 2001 he was part of a team that executed a search warrant at 58 Koutu Road, Rotorua.Present at that address was the appellant who was taken by a woman police officer, Constable Allcock, to an outside toilet so that a personal search could be conducted.Detective Borrell heard the sounds of an argument and struggle coming from the toilet and upon investigation he found the appellant struggling vigorously with Constable Allcock.He restrained the appellant and placed her in handcuffs.He then arranged for her to be taken to the Rotorua Police Station where he interviewed her and took the written statement previously referred to.In the course of the interview she denied that she was a person who sold cannabis, asserting rather that she was a buyer of it and that her flat was not a tinnie house.She denied she had dealt with Constable Winikerei.
[12]	The question of identity is crucial in the appeal.At the Police Station the appellant and Constable Winikerei were brought face to face.The appellant was asked whether she recognised the constable and she denied it.The constable, however, said she recognised the appellant as the person who had sold the tinnie to her.When the constable was giving evidence she was asked if she was able to see the woman she was talking to in court.She said she could and she identified the appellant.In cross-examination she was asked whether she was taken into a room where the appellant was seated with Detective Borrell and she replied in the affirmative.She acknowledged that she was asked if she identified the appellant and that she had replied “yes”.She said the appellant had herself said that she did not know the constable.

Appellant’s submissions

[13]	The appellant’s submissions are to the effect that the quality of the identification evidence was deficient so that it was unsafe or wrong for the jury to convict.She submitted that the description of the seller given by Constable Winikerei was very vague without reference to any distinctive features; the attendance at the address on 14 December 2000 was brief, the constable’s evidence indicating only a few minutes, and there was no informal identification in circumstances where there were a large number of people such as in a street or at a courthouse.She emphasises, also, that no pencil case was found during the search and that there were no fingerprints or other forensic indications of identification found on the tinnie purchased by the police officer.
[14]	The appellant also emphasises that the method of identification at the Police Station was unsatisfactory because, in effect, Constable Winikerei would expect to be shown the person whom it was believed had sold the cannabis.
[15]	The appellant further submits that her arrest was improperly effected solely for the purpose of detaining her in order to question her and that the counts that she faced were fabricated.In her handwritten submissions she alleged that the Police lied when they gave evidence and that her statement was improperly admitted because it was in the nature of hearsay.

Crown submissions

[16]	The Crown submits that the only grounds advanced by the appellant in support of her Notice of Appeal relate to the issue of identification and their own submissions are accordingly confined to that issue.That observation is correct as far as the handwritten material in support of the appeal is concerned but there are of course the more extensively developed grounds appearing in the printed annexure to the Notice of Appeal to which we return later in this judgment.
[17]	The short point of the Crown’s submissions is that there was an entirely adequate evidential basis for the jury to conclude that the appellant was indeed the woman who sold the cannabis to Constable Winikerei.The constable was engaged in conversation with the seller for some five minutes at an address where the appellant confirmed in her statement to the Police she lived.The constable identified the appellant at the Police Station on the termination of the undercover operation and identified her again in Court.The appellant admitted to a police officer that she smoked cannabis and this showed some connection between cannabis use and the person identified.
[18]	In response to the appellant’s argument that the police officers lied the Crown submit that the question of credibility of the witnesses was entirely for the jury.
[19]	In the result, the verdicts had an evidential basis and the credit of witnesses was a jury matter.

Discussion

[20]	We deal first with matters raised in the appellant’s papers but which appear to us quite extraneous to the real issue for consideration in this appeal.
[21]	We cannot understand why the appellant has placed before us a lawyer’s fee account rendered years before the alleged offending, nor why correspondence with the Courts Manager at Rotorua months before that offending should be brought to our attention.We may speculate that the appellant is inviting us to consider some motive for the Police to give false evidence against her, that being a matter specifically raised in the papers, but if that is the reason we are entirely unpersuaded.The appellant was represented at trial by an experienced criminal lawyer in the Bay of Plenty and there was no suggestion of perjury, no doubt because counsel’s instructions could not properly allow such matter to be put.We note that the appellant herself neither gave nor called evidence. There being no proper basis for a suggestion of perjury, the only option open to the appellant at that time was to raise questions about the accuracy of the recollection of Constable Winikerei.
[22]	Nor is there any evidential basis for challenging the legality of the arrest for obstruction.There was not even conflicting evidence from the appellant at trial, nor was there an application before trial to exclude evidence on some Bill of Rights or abuse of process basis.
[23]	The case turns then on the adequacy and reliability or otherwise of Constable Winikerei’s identification.We have not been persuaded that it was unsafe for the jury to rely on the evidence of Constable Winikerei which was in any event supported by other evidential material.These included the appellant’s Police statement which gave some support to the proposition of a cannabis connection, and the coincidence of the appellant’s residential address and the address at which Constable Winikerei said the cannabis transaction occurred.
[24]	As well as the evidence relating to the actual sale of a tinnie to the constable there was evidence that there were at least ten other tinnies in the appellant’s possession.There was evidence that the particular form of packaging was consistent with the sale of cannabis and indeed the willingness of the appellant to sell a tinnie after five minutes discussion with a total stranger indicates that even if in a small way she was in the market.
[25]	For these reasons the appeals against conviction are dismissed.

Solicitors

Crown Law Office, Wellington