R v KENNETH CHRISTOPHER MORGAN [2003] NZCA 286 (9 December 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/03

THE QUEEN

v

KENNETH CHRISTOPHER MORGAN

Hearing: 26 November 2003

Coram: Gault P

Goddard J

Rodney Hansen J

Appearances: Appellant in Person

HDM Lawry for the Crown

Judgment: 9 December 2003

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

[1] The appellant appeals against his conviction and sentence in the Auckland District Court on one charge of cultivating cannabis and one charge of possession of cannabis for the purpose of supply.He was sentenced to concurrent terms of four years imprisonment on each charge.

Background

[2] On 17 September 2001, the police executed a search warrant at an address in Garbolino Road, Mangawhai.The property was a 12-acre rural lifestyle block, which had a small cottage on it.The police found that the interior of the cottage had been converted to create a concealed room, custom-made and fitted for the cultivation of cannabis.In the room were found sixty-seven plants growing.They varied in size from 30 to 50 centimetres tall.In another small room, constructed in the kitchen area, the police found seventy-seven cannabis seedlings and two mature plants, each one metre tall.

[3] In a drying cabinet, 963 grams of freshly picked cannabis seed heads were found.Elsewhere were located two bags of cannabis leaf, totalling 1,356 grams in weight.The police also found $1,800 in cash.

[4] The appellant represented himself at his trial and gave evidence in his own defence.He admitted occupying the property as a tenant and also that he was responsible for cultivating the cannabis plants found there.He also admitted being in possession of the harvested material.He claimed that he was growing and processing the cannabis with the knowledge and support, including financial support, of the owner of the property, Clive Chismon.He said Mr Chismon was the owner of the harvested cannabis and would make any decision as to its disposal whereas he, the appellant was, as he described it, merely the gardener. He said the cash found in his possession was won at the casino.

Grounds of appeal

[5] In this Court the appellant again represented himself, although counsel acting for him had prepared the written submissions filed in advance.

[6] His appeal against conviction was brought on two grounds:

a) The evidence disclosed by the police search should have been ruled inadmissible because of defects in the issue of the warrant.

b) There were inadequacies and a lack of balance in the Judge’s summing up to the jury.

The first ground of appeal affects the convictions on both counts.The second concerns only the charge of possession for supply.In oral argument, the appellant also sought to argue that the trial Judge had wrongly refused to adjourn the trial.This ground had not been notified and was not pursued.

[7] The appeal against sentence is based on its being manifestly excessive.

Search warrant

[8] The application for the search warrant relied on information received from Mr Chismon, the owner of the property.The affidavit of the police officer read:

“I, Graham Alfred Gough, of Mangawhai a Police Constable,

make oath and say as follows:

1 Information has been received from the landlord of a property at Garbolino road*, Mangawhai and currently occupied by Kenneth Morgan that Morgan is growing Cannabis inside the dwelling at this address.The cannabis is being grown under artificial lights behind a false wall.Morgan has lived in the house for the past 5 months.

3 The property is described as a small dwelling with outbuildings and sheds.It is owned by Mr Clive Chismon.

4 Mr Chismon claims to have seen the plants while visiting the address recently. Morgan is described as a friend and has openly talked of his use of Cannabis.Mr Chismon claims that Morgan is supplying Cannabis to other persons.

I THEREFORE APPLY for a search warrant to be issued in respect of the said building, aircraft, ship, carriage, box, vehicle, receptacle, premises or place situated at Garbolino road* Mangawhai used or occupied by Kenneth Morgan, or any person(s) found therein or thereon.”

[9] The appellant submitted that the information in the application was inadequate to support the issue of the warrant.He criticised the absence of information as to the reliability of the informant, the paucity of detail and the absence of any additional information from the police officer himself or from other sources.He relied on the judgment of this Court in R v Cook (CA70/99, 6 May 1999) which held a search warrant to have been invalidly issued because of the absence of any basis for showing that the information relied on was reliable.In that case, the applicant simply recited that reliable information had been received from an informant, who did not wish to be identified, that the appellant was cultivating forty cannabis plants in his garage.

[10] In R v Burns [2002] 1 NZLR 204, this Court discussed the issue of informant reliability and said this at para 16:

“The issue of informant reliability often arises.It is however but one factor in the broader inquiry whether sufficient information has been presented to entitle the issuing officer to be satisfied there is reasonable ground for believing the necessary matters to justify the issue of a warrant.The information advanced is likely to vary in its reliability.Matters such as the degree of precision of the information, its freshness, the manner and circumstances in which it was obtained, its source and its inherent quality, may bear upon its reliability, as well as the previous reliability of a particular informant.An entirely reliable informant may not previously have provided information to the police, yet information given, such as a clear eye-witness account, may well provide reasonable ground for believing a search warrant is justified.Absence of evidence that an informant has proved reliable in the past will not of itself invalidate a warrant.The evidence supporting the application must be assessed as a whole against the statutory requirements.”

[11] In our view, the application contained sufficient information to enable the issuing officer, in terms of s 198(1) of the Summary Proceedings Act 1957, to be satisfied on reasonable grounds that a search would disclose evidence as to the commission of an offence under the Misuse of Drugs Act.The basis for the officer’s belief is stated succinctly but clearly and with a high degree of specificity.The grounds for relying on the information also emerged clearly.The informant was the appellant’s landlord.He had seen the growing operation on his property and had talked to him about it.The information is compelling and fully adequate for the purpose.Cook (supra) is clearly distinguishable.

[12] There is no basis for interfering with the Judge’s pretrial ruling upholding the validity of the search warrant.

Judge’s summing up

[13] After considering evidence in relation to cultivation and directing the jury that it should, on the appellant’s own evidence, find him guilty of Count 1, the Judge went on to direct the jury on the charge of possession for supply in the following terms:

1 “Count 2 is of course the contested count or charge against the accused, i.e. that he had on the 17^th September had in possession for the purpose of supply Class C drug namely cannabis.

2 Purpose of supply.The definition of supply is to distribute, to sell, or to give.An actual sale is not essential.But to prove the charge, against the accused that he had in his possession for the purposes of supply a Class C controlled drug, again as in all criminal trials the onus is on the Crown.That is so but in respect of a charge of possession for the supply, the Crown can rely on a presumption in the law, in the Statute, which at first sight may seem a little confusing but it is really quite straightforward.

3 To prove this charge the Crown has to prove three things: firstly, the material was in the possession of the accused – possession, not ownership; secondly, that it was cannabis; and thirdly, that it was above a certain weight. If the weight of the cannabis found in possession of a person, if that weight is in excess of 28 grams then the Crown have proved its case, proved the charge against the accused, subject to rebuttal.

4 Well here there is uncontradicted evidence that there was at least 2,300 grams of cannabis on the property, possibly more.If that figure of 2,300 grams is correct, it is almost but not quite the 100 times over the legal limit.So all the Crown have to prove to establish this charge, is that the cannabis material was in the possession of the accused, that it was cannabis and that the total weight of the cannabis found was in excess of 28 grams.

5 There is no onus on the accused to disprove any of those three matters.The onus is on the Crown to prove them and prove them beyond reasonable doubt.What it then means is if the Crown has proved those three essential elements beyond reasonable doubt, then the accused is guilty.But the accused has an opportunity to rebut that presumption because by law he is deemed to be guilty if the weight of the cannabis is above 28 grams.

6 He has an opportunity to rebut that presumption.The fact remains that if the Crown proves those three essential elements, the Statute provides, and the Misuse of Drugs Act, that the accused is presumed or deemed to have the cannabis for the purpose of supply to others.In other words, if the Crown proves those three elements, the charge against the accused is proven.There does not have to be any evidence of actual sales, or of an actual intention to sell in the future, because I repeat to you, supply means to distribute, to give away, to sell.The Crown do not have to prove that the accused sold any of the cannabis or that he intended to sell, it is the possession that is one of the essential elements of the offence.

7 For example the accused person could say, ‘Yes I’ve got more than 28 grams in my possession but all the cannabis I had in my possession was for my own personal use, I’m a heavy smoker of it, all the stuff I had there, all that cannabis is more than 28 grams but it was solely for my own personal use, I have no intention of supplying to anyone I just want it all for myself.’

8 The accused isn’t saying that in this case, what he is saying is I had in possession, I didn’t have ownership and I didn’t intend to supply.It is not the ownership that is important it is the possession because if a person has in their possession more than 28 grams they are deemed to have it for the purposes of supply.

9 What the accused is really saying is that he was holding the cannabis, had it in his possession on behalf of Mr Chismon.He claims that although the cannabis was in his possession, because he acknowledges that it was in his possession, he did not have the cannabis for the purpose of supply.So what the accused is claiming is that although he admits that he actively cultivated the cannabis crop, the decision as to the disposal of the crop, he alleges, was a decision to be made by Mr Chismon.

10 Bear in mind, Mr Chismon gave evidence and he denied any involvement in the cultivation of the crop and that he denied that he had any connection with the involvement, the growing of it, or anything to do with it except that he knew it was being grown there.

11 I emphasise to you that the three elements in this count 2 is possession, and that it was cannabis and that it was more than 28 grams.It is a matter of common sense you may think, but in this case where there is over 2,000 to 2,300-odd grams of cannabis you may feel justified in coming to the conclusion, an obvious conclusion, that a good proportion of that cannabis would be supplied, would be distributed, would be given or would be sold to other individuals.

12 There can be no question, as the accused accepts, of the weight of the cannabis that was in the possession of the accused when the police executed the search warrant.Under the Statute the onus is on the accused to establish on the balance of probabilities that the cannabis was not for supply.

13 If the accused does not discharge that onus, he must be convicted, that is the legal position.”

(We have added paragraph numbers for ease of reference.)

[14] The Judge went on to discuss the evidence.In a later paragraph, he referred as follows to evidence of a visit by the appellant to the Auckland Casino.

14 “There is also one matter that I also wish to touch briefly on because you have heard the accused today say that he didn’t own that land, he didn’t own the car, he didn’t own anything, all he was doing was cultivating the cannabis.If that was the position, it is a matter for you to take into consideration, it may not seem important to you whatsoever, but you will recall from the evidence of the Sky City person that came along and gave evidence yesterday from the Casino, that only a few days before he was arrested, and here was a man, the accused who didn’t own anything, had spent a total of 8 hours and 20 minutes at the Casino, during which time he bet a sum in excess of $33,000.A man who had arrived in New Zealand with no money, still claims he didn’t have any money, goes to the Casino with $1,000 then during the next 8 hours is able to bet, as he is quite entitled to do, a sum in excess of $33,000.What do you make of that?”

[15] Later he referred to the evidence of Mr Chismon who had been a prosecution witness.He concluded this part of his remarks by saying:

15 “Whatever happens in the future to Mr Chismon is not your concern but you may have been under the impression, while the accused was addressing you today, that this was a prosecution against Mr Chismon.Put that right out of your mind.As Mr Chismon has said in his evidence, ‘I’d have to be pretty thick not to know what he was up to.’

16 It is probably trite to say, but it could be said that you as jurors would have to be pretty thick to think that the Crown hasn’t proved the charges against the accused because if you take into account the legal principles which I have explained to you, then they must go a considerable distance to proving the guilt of the accused of those charges.”

[16] The appellant submitted that the Judge’s summing up in relation to Count 2, failed adequately to explain how the presumption provided by s 6(6) of the Misuse of Drugs Act operates, how it could be rebutted and the differing standards of proof beyond reasonable doubt and proof on the balance of probabilities.He argued that the directions were confusing and could have left the jury bewildered on onus of proof issues and ignorant of what is meant by proof on the balance of probabilities that the cannabis was not held for the purpose of supply.

[17] The appellant also contended that the summing up demonstrated a distinct bias in favour of the Crown case.He complained that the comments in relation to his visit to the casino were couched in excessively sceptical terms.He was particularly critical that the Judge virtually directed the jury to find him guilty on both counts.He acknowledged that this may not have been harmful in relation to Count 1, given his frank admission in evidence that he grew the cannabis, but submitted it could have been crucial in relation to Count 2 given the inadequacy of the directions.

[18] Mr Lawry, for the Crown, allowed that the Judge’s directions in respect of the presumption and the reverse onus were not as coherent or clear as they might have been.However, he submitted that, in the course of his summing up, the Judge adequately explained the elements of the offence, the obligation on the Crown to prove each element, the effect of the presumption and the onus on the defence to rebut the presumption.

[19] We are in no doubt that the direction in relation to the critical element of purpose was defective.In particular, the Judge never clearly explained to the jury how the presumption of possession for supply could be rebutted.In the passages set out in paras 5 and 6 above, he suggests that the charge is proved by virtue of the appellant being in possession of cannabis in excess of the specified weight.It is true that in paras 12 and 13 he refers to the onus on the appellant to establish on the balance of probabilities that the cannabis was not held for supply.But the jury was never given any clear guidance as to how that onus could be discharged.The meaning of proof on the balance of probabilities was never explained at all.

[20] We have some concerns about the passage in the summing up which refers to the visit to the casino.There was an undue emphasis on the total amount gambled by the appellant.Most of it was winnings.Only the amounts the appellant took to the casino and took away had any direct relevance to the Crown case.

[21] The Judge’s reference to jurors having to be “pretty thick” to think that the Crown hadn’t proven the charges against the accused came close to a direction to find the appellant guilty on Count 2 as well as on Count 1.It is regrettable that the Judge should have invoked Mr Chismon’s evidence in this way.The jury was left in little doubt as to the Judge’s view on the ultimate issue.

[22] Overall, we consider the appellant’s criticisms of the summing up are justified.The jury was not given adequate guidance as to how the presumption of possession for supply could be rebutted.The other passages complained of, particularly the “pretty thick” remark, exceeded the bounds of justified comment on facts in issue to convey unmistakably the Judge’s view on the ultimate issue.On the evidence, the Judge’s scepticism of the defence case was understandable but it did not absolve him of the responsibility of ensuring that the jury was given the guidance necessary to make that decision fairly for itself.

Substantial miscarriage of justice

[23] We pass to consider whether, notwithstanding the deficiencies in the summing up, in terms of the proviso to s 385(1) of the Crimes Act 1961, no substantial miscarriage of justice has occurred.This requires an assessment of whether, without the errors in the summing up, the jury would still have convicted the appellant on the charge of possession for the purpose of supply.

[24] It was no part of the defence case that the cannabis was in the appellant’s possession for his own use.His position was that he had possession for ultimate disposal by Mr Chismon “as he saw fit”.The question arises whether the appellant’s evidence that Mr Chismon would be exclusively responsible for the ultimate disposal of the cannabis, may have provided a sufficient foundation for the jury to find that the presumption of supply had been rebutted.

[25] In R v Rees [1990] 1 NZLR 555, this Court considered the position of an accused who contended that he had custody of a quantity of cannabis for safekeeping for a third party.The Judge directed the jury as follows on the issue of intention:

“And I say to you that there does not have to be an intention on the part of the accused to see sales achieved.

...

... it is necessary for him to prove to you not only that he did not intend to sell the cannabis, but further that the cannabis was not intended to be sold by himself or the others.”

The Court said (at p 558):

“Those directions were clearly defective.The purpose of selling must be entertained by the accused himself to render him guilty of possession for the purpose of sale.If he is jointly in possession with someone else (as may well have been the case here) and knows that that person intends to sell, no doubt he can be charged as being a party to possession for sale; but that was not the way in which the charge was laid here.To establish the charge that was laid the Crown has to show (with the aid of the statutory presumption when, as here, it is available) that the accused had the purpose of selling.But in such a case it is not necessary, in our view, to show that the accused intended to make the sales himself.It is enough if he has taken custody of the drug, either solely or jointly, with the intention that it be sold later and that he will receive a share of the proceeds or other reward.The very reason for his own possession would then be to enable the drug to be sold at a suitable opportunity.We regard that as falling within the concept of possession for sale for the purposes of this legislation.

On the other hand, if the custodian is merely aware that the person who has entrusted him with the drug will or may sell it, but is indifferent to whether or not it is to be sold and is not a party to any proposal or scheme for selling, he cannot be convicted of possession for sale.He may be convicted of aiding possession by another for sale if that other has joint possession.”

[26] The charge in Rees was possession for the purpose of sale.The charge in this case is that the appellant “... had in his possession for the purpose of supply a Class C controlled drug namely cannabis”.The charge is laid under s 6(1)(f) which provides that no person shall:

“(f) Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.”

The purpose of supply referred to in the indictment is in s 6(1)(d) which provides that no person shall:

“(d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age.”

[27] The offence of possession for the purpose of supply is to be contrasted with that of possession for the purpose of sale under s 6(1)(e) which refers to selling or offering to sell a Class C drug to a person of or over the age of eighteen years.The distinction was discussed by this Court in R v Paterson [1985] 1 NZLR 334.Giving the judgment of the Court, Cooke J said at p 336:

“Offences against s 6(1)(f) are at times briefly referred to as possession for supply.But, as mentioned in R v Smith [1980] 1 NZLR 412, 424, the 1975 Act differentiated as regards indictable offences relating to Class C controlled drugs between supplying and selling.Mere supply or possession for supply is not enough if the persons supplied or to be supplied are of or over 18 years of age; selling or offering to sell to such persons, or having in possession for that purpose, is necessary to constitute an indictable offence.Supplying or administering or offering to do so, or having possession for such a purpose, is enough to constitute an indictable offence if a person supplied or administered to, or to be supplied or administered to, is under 18.See s 61(1)(d), (e) and (f).”

[28] In his summing up the Judge did not refer to the requirement that supply be to a person under the age of eighteen years.Nor was it an issue at the hearing of the appeal.On the face of it, however, it suggests a further omission in the Judge’s directions and is plainly a factor in considering whether or not the proviso to s 385(1) applies.We therefore invited the Crown to file a further submission addressing the implications of a charge which appears to involve supply to persons under the age of eighteen years.

[29] In response, Mr Lawry submitted that the Crown does not limit itself to possession for the purpose of supply.He argued that, as the definition of “supply” in s 2 of the Misuse of Drugs Act includes “distribute, give and sell”, the use of the word “supply” in the indictment was sufficient to capture either of the purposes referred to in subparas (d) and (e) of s 6(1).He relied on the opening sentence of the passage from Paterson (supra) referred to in para [27] above as supporting this approach.

[30] We are unable to accept this submission.A charge of possession for supply of a Class C controlled drug under s 6(1)(f) may specify either or both of the purposes referred to in s 6(1)(d) or (e), although the presumption could be relied on to prove only one of those purposes – see the discussion in R v Tracy [1978] 2 NZLR 91 (CA).Thus it is permissible for the Crown to charge an accused with being in possession of a Class C controlled drug for a purpose specified in para (d) or para (e) of s 6(1) – see the recommended form of indictment in Tracy (supra) at p 95.But the charge in this case can only be understood as referring to the purpose referred to in s 6(1)(d).It refers only to a single purpose, namely, supply.If the Crown had intended to rely also on possession for the purpose of sale, it should have formulated the count in the indictment to refer to both of the proscribed purposes.

[31] There is no indication that the jury was invited to consider possession for the purpose of sale.The Judge’s summing up referred only to possession for supply.And in his sentencing remarks he said (para [17]):

“You seemed to have confused the charge as being one of sale.There was no evidence against you, nor did the Crown have to prove, that you physically sold the cannabis.The charge against you, as was often pointed out to you, was that the cannabis was in your possession for the purpose of supply, not necessarily for sale.”

[32] For the purpose of the application of the proviso to s 385(1), the issue is therefore whether we can be satisfied that the jury, if properly directed, would have found the appellant guilty of the charge of possession for the purpose of supply to a person under eighteen years of age.

[33] Adapting what was said in Rees (supra at para 25) to the charge of supply, it was necessary for the Crown to show (with the aid of the presumption) that the accused had possession of the cannabis with the intention that it be supplied to a person under the age of eighteen years.The appellant acknowledged in evidence that he was aware that the cannabis would be supplied by Mr Chismon to others but there was no suggestion that any such supply would be to persons under the age of eighteen years.Indeed, the possibility was not mentioned in either prosecution or defence evidence.

[34] In order to rebut the presumption, the appellant had to show on the balance of probabilities that he did not have the requisite intention.That would require his establishing, to use the words of the Court in Rees, that he knew Mr Chismon may supply the drug to others but that he, the appellant, was indifferent to what happened and was not a party to any supply arrangements.It would also have been open to the appellant to rebut the presumption by establishing on the balance of probabilities that his only relevant purpose was to supply to Mr Chismon who was over the age of eighteen.

[35] The jury was not asked to consider whether the appellant was sufficiently involved in the alleged supply by Mr Chismon to establish the necessary intention or to consider the issue of supply by the appellant to Mr Chismon himself.Had the jury been properly directed on these matters and of the means by which the presumption could be rebutted, we cannot reasonably exclude the possibility that it would have come to a verdict of not guilty.

[36] The proviso to s 385(1) cannot apply.As Count 2 substantially duplicates the charge of cultivation in Count 1, on the facts of this case an order for a new trial is not warranted.The conviction on Count 2 is accordingly quashed.

Sentence

[37] In sentencing the appellant to four years imprisonment, the Judge described the cannabis cultivation operation as sophisticated.He referred to the extensive modifications that had been made to the house to permit indoor cultivation and to the number of plants involved (156).He proceeded on the basis that the cannabis found weighed 3,660 grams and was valued at $20-30,000.

[38] The Judge said the offending came within the third category in R v Terewi [1999] 3 NZLR 62 which covers large scale commercial growing, usually with a considerable degree of sophistication and organisation and attracts a starting point of four years imprisonment or more.He accepted the Crown’s submission that the starting point should be five years.He allowed a discount of one year to recognise the avowed intention of the appellant to distance himself from cannabis use in the future.

[39] The appellant contended that the starting point adopted by the Judge was too high.He referred to the decision of this Court in R v Pure (CA359/00, 20 February 2001) which was referred to by the Judge as comparable and which adopted a starting point of five years.He submitted that Pure was a more serious case.There were actual sales and a potential return of $500,000 for the crop was suggested.It was submitted that Pure was overall a more serious case and supported his submission that the starting point adopted by the Judge was too high.

[40] In his oral submissions, the appellant argued that his avowed intention to devote himself in the future to bringing about changes to the cannabis laws by lawful means justified a reduction in sentence to two years.

[41] For the Crown, it was submitted that the sentence was appropriate having regard to Pure and R v Smith (CA562/99, 23 March 2000) in which this Court upheld a starting point of five years for charges involving a hydroponic growing operation which was projected to yield an annual turnover of $216,000.Mr Lawry submitted that Pure was indeed comparable to the present case, having regard to the potential for multiple harvests from an indoor operation.

[42] We are not persuaded that the starting point was excessive for the charges of which the appellant was convicted.However, the quashing of the conviction on the charge of possession for supply calls for some adjustment to the sentence.In all of the comparable cases to which we were referred, the offending went beyond cultivation to include actual sales or possession of the drug for that purpose.The sentence should recognise that the offending is now confined to simple cultivation.We consider that a reduction of one year to three years imprisonment is warranted.

Result

[43] The appeal against conviction is allowed and the appellant’s conviction on the charge of possession of cannabis for supply is quashed.The appeal against sentence in respect of Count 1 is allowed.In place of the sentence of four years imprisonment, a sentence of three years imprisonment is imposed.

Solicitors:

Crown Solicitors, Auckland