THE QUEEN v PETER MONTGOMERIE [2003] NZCA 181 (4 August 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA36/03

THE QUEEN

v

PETER MONTGOMERIE

Hearing: 29 July 2003

Coram: Anderson J

Paterson J

Salmon J

Appearances: AG Speed for Appellant

K Raftery for Crown

Judgment: 4 August 2003

JUDGMENT OF THE COURT DELIVERED BY SALMON J

[1]

Mr Montgomerie appeals against his conviction, after trial before a jury, for cultivation of cannabis.He appeals on two grounds.The first is that the Judge misdirected the jury in relation to an alleged failure by the appellant to give an alibi notice.The second ground is that fresh evidence has come to light which was not available at the trial and that there should be a re-hearing so this fresh evidence can be considered.

Background

[2]	A land surveyor discovered a number of plants growing a short distance from the appellant’s home at Medlands Beach on Great Barrier Island.The surveyor informed the police and Constable Homan, the sole officer on the island, went to remove the plants.Whilst doing so he was approached by the appellant and his two dogs.The officer was concerned about being attacked by the dogs and pointed his police issue firearm at them, telling the appellant to call them off.An altercation arose.The appellant asked the constable what he was doing.The constable showed him a cannabis plant.As Mr Montgomerie was walking away Constable Homan says that he asked Mr Montgomerie whether the cannabis was his and that Mr Montgomerie said it was.Mr Montgomerie denied that he had made any such admission and suggested that others could have been responsible for growing the cannabis.
[3]	In his evidence at trial he said he was in Auckland from August 1999 to February 2000 and arrived back on the island a couple of days before the cannabis was found by the constable.He said his house was occupied by a flatmate while he was away.
[4]	In cross-examinationhe was asked whether it was his evidence that he was in Auckland continuously from October through to 16 February.He replied:

I was in Auckland most of that time – I think I came back a couple of times during that period but only for a day or something, you know, but prior to that particular incident I hadn’t been back there for a couple of weeks, week and a half, couple of weeks, three weeks something like that, you know

He then went on to say:

But I’m not using that alibi, I’m not going for an alibi.

He agreed that he could have been the one who planted the cannabis and agreed that it was not impossible for him to have done so.

First ground of appeal

[5]	Section 367A(1) of the Crimes Act 1961 provides:

(1) On the trial of any accused person who has been committed for trial, he shall not without the leave of the Court adduce evidence in support of an alibi unless, before the expiry of 14 days after the date on which he is so committed, he has given notice of particulars of the alibi.

[6]	Mr Montgomerie did not give notice of an alibi in terms of s367A.This fact was commented upon adversely by Crown counsel in his closing address.
[7]	The Judge referred to this issue at some length in his summing up.He noted first, that there was an onus on the accused to alert the Crown if he was relying on an alibi as his defence.He said Mr Montgomerie seemed to take a “bob each way” in this case.He continued:

He says that he was away most of the time during the period of December and February away from the island because of his son’s injury, but at the same [sic] he accepts that he was on the island for quite some time where he could have, if he had wanted to, cultivate these plants but he did not cultivate them.That particular alibi of him being away for the majority of the period in question, the Crown says, if he wanted to raise that, it should have been raised when he was first interviewed by the police.

[8]	The Judge went on to note that Mr Montgomerie was perfectly entitled not to make any statement to the police, but continued:

But you would have thought that in the circumstances where he was convinced that he was not on the island during the period, one would have thought that that would have been the best opportunity for him to alert the police and to say “I’m not the cultivator, I wasn’t even on the island.If you go and speak to my wife and my son, they will corroborate the fact that I was most of the time in Auckland, away from the island, and that there was another person living in the house at that time.”He did not do that.There was no onus on him, but by virtue of the fact that there is a duty onhim to disclose his alibi to the police and he failed to do so, the Crown is entitled to make an adverse comment about that, and that was what Mr Mount did to you in his closing address.

[9]	For the appellant two points are made.The first was that there should have been no reference to an alibi because the allegation was of cultivation on 18 February when Mr Montgomerie was admittedly on the island and his evidence related to dates before that.
[10]	Secondly, so far as the prosecution was concerned, there was nothing new about the claim because Mr Montgomerie had made a similar claim in an earlier trial and finally, it is said that his evidence about his absence was not alibi evidence in any event.
[11]	Counsel submits that the essential issue in this case was one of credibility and that the Judge’s comments undermined the accused’s credibility.
[12]	For the Crown it is said that the evidence at the earlier trial was very different.Then he had said that he was in Auckland during the week prior to 17 or 18 February 2000.At the second trial the appellant gave evidence that he was in Auckland continuously from October through to 16 February 2000, although in cross-examination he said that he thought he had come back a couple of times during that period, but only for a day or so.The Crown submits that an alibi in respect of cultivating cannabis, which is essentially an allegation of a continuing offence, would consist of evidence of inability to cultivate through absence during the growing period.
[13]	Both Crown and appellant referred to subs(8) of s367A which provides:

(8) In this section, the expression “evidence in support of an alibi” means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

[14]	For the appellant, the words “at the time of its alleged commission” are emphasised and it is submitted that the date of discovery of the plants is the date of commission.The Crown says that an offence of cultivating extends over the period of cultivation.

Discussion

[15]	The indictment alleged the commission of an offence “on or about 18 February 2000”.The application of subs(8) of s367A has been discussed by this Court in R v Stephens [1997] 15 CRNZ 308.At page 313 the Court said:

Section 367A is precisely worded and, though in our view the section can have application where a continuing offence is charged with reference to conduct at a specified address or within a particular locality, it does not require an alibi notice except when the alibi relates to the whereabouts of the accused at the time of the alleged commission of the offence. We reject the Crown's submission that it is enough to bring the requirements of the section into play that the time to which the alibi relates is proximate to the time of the offence and covers an event which is directly probative of the prosecution case. At the time Parliament enacted s 367A there was considerable concern about interfering with the traditional procedure in criminal trials whereby accused persons were not obliged to disclose their defence in advance of the trial. The requirement that an accused notify particulars of any defence of alibi or face forfeiture of the right to adduce evidence in support of that defence was a carefully crafted exception to that procedure. The section therefore should not be given an interpretation which substantially departs from the words chosen by Parliament. The "time of [the] alleged commission" of the offence will naturally encompass the period immediately before and after the offending, eg when robbers are going to and fleeing from the scene of the crime, but it will not cover remoter periods even though events which then occurred have significance in the case against the accused.

[16]	Applying the section to the facts of this case we hold that an alibi notice would only be required where the accused was claiming that he was not on Great Barrier Island on 18 February or during the period immediately before that date.
[17]	We have noted above that Mr Montgomerie expressly disavowed the raising of an alibi as a defence.He was certainly under no legal obligation to give notice of alibi in respect of the lengthy period referred to Crown counsel and by the Judge.
[18]	The critical issue in the trial was one of credibility.The policeman who discovered the cannabis gave evidence that Mr Montgomerie admitted that it was his.At trial Mr Montgomerie denied having made such an admission and denied that the cannabis was his.
[19]	We have concluded that the remarks made by the Judge concerning the need for a notice of alibi arose from a misunderstanding of the legal requirements of s367A.As a consequence the Judge criticised Mr Montgomerie for breach of a duty which did not exist.We accept that this criticism reflected directly on the crucial issue of credit and that this has occasioned a miscarriage of justice.
[20]	The Crown submitted that in the event of the Court reaching that conclusion we should apply the proviso to subs(1) of s385 of the Crimes Act 1961.We decline to do so.The issue of credibility was so central to the trial that the wrongful impugning of the appellant in that regard makes it inappropriate to take that course.
[21]	The above finding makes it unnecessary to determine the second ground of appeal.The appeal is allowed and a re-trial is ordered.

Solicitors:

AG Speed, Auckland for Appellant

Crown Solicitors, Auckland