ALI v R [2004] NZCA 163 (29 July 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA156/04THE QUEEN

v

MUKHTAR ALI

Hearing: 21 July 2004

Coram: O'Regan J Panckhurst J Paterson J

Appearances: S Fernando for Appellant
A Markham for Crown

Judgment: 29 July 2004

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

[1] Mr Ali was convicted by a jury of possession of cannabis for supply. He was sentenced to 18 months imprisonment and was refused leave to apply for home detention. Mr Ali now appeals against both his conviction and the sentence.

Background

[2] On 4 February 2003, the police executed a search warrant in respect of an unrelated matter at Mr Ali’s home. It was obvious to the police that Mr Ali had been smoking cannabis. The police invoked s18(2) Misuse of Drugs Act 1975 and searched the premises.
[3] The search discovered a small quantity of cannabis plant material sufficient for approximately ten cigarettes, concealed underneath a bedsheet in the master bedroom, a backpack, in the dining room, inside of which were five deal bags of dried cannabis head material weighing a total of 142 grams, and a plastic supermarket bag containing 510 grams of slightly damp lesser quality cannabis leaf material. The combined weight of the cannabis was 652 grams, some 23 times the statutory presumption for supply. Also located were a set of electronic scales (on top of a cabinet in the dining room) and several quantities of cash. On the dresser in the master bedroom was a money clip containing $760 in $20 notes, on the hallway table was $712 in various denominations, including $20, $10 and $5 notes, and in a sunglasses bag in the hall was a further $120 in $20 notes. Both Mr Ali and his wife are beneficiaries.
[4] Mr Ali gave evidence. He stated that the cannabis had been given to him by a friend as payment for a spray painting job. The cannabis in the deal bags was intended for personal use over the next six months, while the larger amount of leaf material was a “freebie” that he intended to “chuck away.” He claimed he smoked an ounce of cannabis every three to four weeks and used it to alleviate the pain for a rheumatoid condition.
[5] Mrs Ali gave evidence and claimed that she withdrew two lots of $800 in cash from an ATM machine on 13 January and 1 February 2003 respectively, for the purposes of paying the household rent which was overdue. She stated that on each occasion, money was received in $20 denominations. Her evidence was that the weekly rent was $400 whereas Mr Ali said it was $350.
[6] Mr Ali’s doctor also gave evidence and confirmed that Mr Ali presented in early 1999 with joint inflammation and was prescribed medication for this condition. The prescriptions ceased in March 1999, and the last consultation was 8 May 1999. The doctor’s notes in January 2000 recorded “no further joint problems.”

Conviction appeal

[7] The ground of appeal is that there was a miscarriage of justice. This miscarriage was said to have occurred because the summing up to the jury was unfair. The particular grounds of unfairness relied upon are:

1. Judge Bouchier in her summing up repeated comments made by Crown counsel in his final address concerning an incident which occurred when Mrs Ali was giving evidence, thus tacitly concurring with those comments. This was prejudicial to the credibility of the defence evidence;
2. The Judge failed to give firm and clear directions negating the impact of Crown counsel’s comments which suggested a concoction of the defence evidence;

100. The Judge in her summing up failed to give the same weight to the defence closing comments as she gave to the Crown closing address. Particular reliance was placed on references which Her Honour made to statements by defence counsel in his final address relating to decomposition of damp grass cuttings and tomato juice;

4. The Judge failed to give clear and unambiguous directions to the jury.

[8] The first and second alleged grounds of unfairness are related. Our understanding of the background comes from counsel, one of whom was not present at the trial. Mr Fernando, the counsel who was present, did not see the incident. We were advised that when Mrs Ali was being cross-examined, she paused before answering questions and looked to her husband. He signalled to her. When the Court attendant saw this, she said something to Mr Ali, presumably asking him to stop signalling to his wife. Crown counsel referred to this incident in his final address. Mr Fernando advised us that he responded to the comments from Crown counsel by advising the jury in his final address that Mr Ali denied that he was signalling to his wife in an endeavour to prompt her responses.
[9] The Judge referred to the comments made by Crown counsel when summarising the Crown case in her summing up, in the following terms:

The Crown invites you to treat with caution what the accused’s wife said in her evidence because the Crown says to you that the Court Attendant had to intervene to stop him giving hand signals to her. And the Crown suggests to you that her evidence was carefully crafted to tie in with his.

...

Mrs Ali’s evidence, the Crown says is clearly concocted towards supporting her husband and the Crown suggests to you the evidence is not credible and they proved the elements of the charge to the necessary standard and therefore the only conclusion you can come to is one of guilty.

The second ground of unfairness is that the jury should have been directed in a way to negate the impact of the intervention of the Court attendant.

[10] The submission on behalf of Mr Ali was that the Crown effectively introduced evidence from the Court attendant. The evidence so introduced affected the credibility of the defence evidence and may have caused a serious impact on the minds and impartiality of the members of the jury. This defence evidence was aimed at rebutting the presumption that the cannabis was held for the purposes of supply.
[11] The Crown’s response was that reminding the jury of the hand signalling incident in the closing address is no different to any other submission based on the demeanour of a witness when calling evidence. Counsel for Mr Ali is wrong to speak of evidence inappropriately introduced as counsel’s addresses do not constitute “evidence.”
[12] The incident with the Court attendant was an unusual one. The jury would likely have seen the intervention of the Court attendant themselves, and the action of Crown counsel in drawing it to their attention was similar to drawing their attention to other aspects of the demeanour of a witness. It was not evidence in the trial but was part of what occurred in the courtroom during the trial and was, in effect, part of the atmosphere of the trial. The jury was entitled to take it into account when considering the credibility of Mrs Ali, and it may have also reflected on Mr Ali’s credibility. An accused who attempts to influence a witness while the latter is giving evidence must accept the consequences.
[13] While we see no merit in these two points, we note that it would have been preferable for the Judge to have referred to Mr Fernando’s submission on this particular point, particularly as she drew the jury’s attention to the comment made by the Crown counsel. The Judge did refer to “the submission of the Defence that it is not carefully crafted evidence” but as Crown counsel’s comment had been repeated, it would have been preferable to also note what Mr Fernando said about the incident. Ideally, the Judge should have made it clear that the Crown counsel’s statements about the hand signals was not evidence and they should take the incident into account only if they saw it themselves.
[14] There are two aspects to the third ground of alleged unfairness, namely, that Her Honour failed to give equal weight to the defence evidence and closing comments in her summing up. The first relates to a comment made by defence counsel in his closing address. He invited the jury to draw an analogy between decomposition of damp glass clippings left in a plastic bag and the 510 grams of slightly damp lesser quality cannabis leaf discovered in the plastic supermarket bag. Mr Ali in his evidence had said that this cannabis leaf was of no commercial value and was dumped on him by a friend, and he in turn wanted to dump it. A constable in his evidence confirmed that this cannabis leaf was damp.
[15] Her Honour commented on this submission by defence counsel when giving a direction on the need to consider all of the evidence which had been given, and the exhibits. She then said:

You must also consider what counsel have said but what they say of course is not evidence and I would remind you of that when thinking about the grass clippings aspect of what has been said in the defence closing and what you make of the witnesses and the evidence is entirely a matter for you and it is for you to decide what witnesses and what evidence you regard as being reliable and credible.

[16] We take Mr Fernando’s submission as a suggestion that Her Honour was encouraging the jury to disregard the grass clippings submission. The Crown position is that the Judge was not instructing the jury to disregard the submission, but merely noted that the analogy given by counsel was not evidence. She was entitled to refer to the grass clippings as an example of the submission by counsel.
[17] We accept the submission of the Crown. It may also be that the Judge was warning the jury that they had to carefully consider whether there was a factual foundation for the submission.
[18] The second point made in respect of the allegation of not giving equal weight to the defence final address was that the Judge showed an unfair bias towards the Crown in her reference to tomato juice. In her summing up of the Crown case, she said:

The evidence of both accused and his wife is full of inconsistencies; the Crown put it to you. It raised the issue of tomato juice. Mrs Ali’s evidence, the Crown says, is clearly concocted towards supporting her husband and the Crown suggests to you the evidence is not credible and they proved the elements of the charge to the necessary standard and therefore the only conclusion you can come to is one of guilty.

It was submitted that this was prejudicial to Mr Ali because no reference was made to the evidence of the doctor who confirmed Mr Ali’s practice of taking tomato juice. Further, Her Honour failed to comment on the consistency of the evidence of the doctor and Mr Ali relating to Mr Ali being an arthritis sufferer, a user of steroids, having liver damage and using tomato juice. It was said that Her Honour failed to give a balanced summing up.

[19] The Crown response was that the Judge was giving a “shorthand form” summary of the Crown’s closing submissions. There was no need to elaborate further as the final addresses would have been fresh in the jurors’ minds. They would have understood the summary. Further, the doctor’s evidence did not support Mr Ali’s claim. He had never heard of tomato juice curing liver damage and, although his notes recorded Mr Ali as having said that he used tomato juice, that was in relation to joint problems and not liver damage.
[20] The issue in this case was whether Mr Ali was able to rebut the statutory presumption. There was no dispute that he had in his possession cannabis which exceeded 28 grams in weight and it was therefore necessary for him, on the balance of probabilities, to rebut the presumption that the possession was for supply. The tomato juice comment was made by Her Honour in summarising the Crown’s case to meet Mr Ali’s attempt to rebut the presumption. In summarising the Crown’s case on this point, it was necessary for Crown counsel to deal with the evidence which Mr Ali had adduced. Thus, the summary of the Crown’s case by necessity referred to the main submissions made on behalf of Mr Ali and the Crown’s response to them.
[21] It is correct that Her Honour appears to have spent more time in summarising the Crown’s case than the defence case, but approximately half this time was spent in noting Mr Ali’s case, and the other half in the Crown’s response to it. Thus, the defence case was in fact mentioned twice. The comment in the summing up referred to in para 18 appeared in a summary of the Crown case. It is correct that there was no reference to the evidence of the doctor relating to tomato juice and it may have been preferable for there to have been such a comment. However, when considered as a whole, we are of the view that the summary of the respective cases was not unbalanced. It is not possible in a summary to cover all matters raised by both the defence and the Crown, and we do not in the circumstances of this case see that the failure to refer to the evidence of the doctor led to both an unbalanced summary of the respective cases or to a miscarriage of justice.
[22] The final ground of alleged unfairness was that the Judge failed to give clear and unambiguous directions to the jury. This ground is based on the following comments taken from the summing up:

But this is the twist because the presumption may work unfairly, the accused is given the opportunity to rebut the presumption, to persuade you that he had the drugs for some other purposes than to supply them to others. And in considering the defence evidence about that two things are to be kept in mind. He must persuade you that all of the drugs were for his use. If you think that only some of them were for his use, that is not good enough.

Secondly, the standard of proof required, as I said before, is not as high as that imposed on the Crown. The standard of proof required of an accused is what is known as the balance of probabilities. He has to satisfy you that it is more likely than not that he had all of the drugs for his own use. (emphasis added)

[23] The basis of this submission is that Mr Ali’s defence was that the 142 grams of good quality cannabis were for his own use, while he intended to dump the 510 grams of lesser quality cannabis. The references to “were for his use” and “for his own use” were therefore a mis-statement of the defence position because they indicated that Mr Ali’s defence was that he was going to use the 652 grams for himself. This carried an implication that the Judge did not accept his stated defence in respect of the 510 grams of lesser quality cannabis.
[24] The Crown’s response was that in the context of this single issue trial, the jury would not have assumed that “chucking the cannabis away” was supplying the cannabis. The term “own use” had a more general meaning of “doing what he wanted to do with the cannabis apart from supplying it.”
[25] We accept that the references to “for his use” and “for his own use” were unfortunate. However, in its context within the summing up and in the overall context of the short trial, with the summing up following immediately the final addresses of counsel, we are of the view that the jury could not have been confused by these comments. The first reference to “his use” followed closely after the Judge had referred to Mr Ali having drugs “for other purposes than to supply them to others”, and this would be likely to have led the jury to conclude that “his use” meant his use for any purpose other than supply, and not just for actual consumption by him. Mr Fernando had clearly stated Mr Ali’s defence and the only decision for the jury was whether the jury members were satisfied on the balance of probabilities that Mr Ali did not intend to supply any portion of the cannabis. The Judge in her summing up directed the jury that if she said “anything which you might interpret as a view of the facts in this case, then you should ignore it, unless it coincides with your own independent view.” We do not agree that the particular wording complained of caused or contributed to a miscarriage of justice.
[26] The appeal against conviction cannot succeed.

Appeal against sentence

[27] Mr Ali was sentenced to a term of 18 months imprisonment. The ground of the appeal against the sentence is that it was manifestly excessive.
[28] It was submitted on behalf of Mr Ali that there was no evidence that he was actually involved in selling cannabis or was involved in a commercial operation. The Judge adopted the classification in R v Terewi & Hutchings [1999] 3 NZLR 62, and it was submitted that she had erred in doing so.
[29] The jury rejected Mr Ali’s defence. It was implicit in the guilty finding that Mr Ali had the cannabis for the purposes of selling it. He contemplated a commercial operation. The offending clearly fell within category 2 of Terewi. The starting point for sentencing in this category is generally between two and four years imprisonment. Her Honour noted the Crown’s concession that a two year period might be a little high in terms of the facts in this case. She agreed with this concession. She took into account Mr Ali’s personal circumstances and imposed a term of 18 months imprisonment.
[30] The Judge’s sentencing notes do not indicate the volume or value of the cannabis which she took into account in imposing the sentence. It would have been preferable for there to have been such an indication. We do not know what view the Judge took on the 510 grams of cannabis in the supermarket bag. If it were “cabbage”, it may not have been useable. However, the verdict in this case clearly indicated that Mr Ali had cannabis for supply. Based on category 2 of Terewi, where the usual sentencing range is from two years to four years, a sentence of imprisonment of 18 months is not manifestly excessive.
[31] Mr Ali also appealed against the refusal to grant leave to apply for home detention on the grounds that that was unfair having regard to the criteria for determining such an issue in s97(3) of the Sentencing Act 2002. In respect of this submission, counsel referred to Mr Ali living a devoted Muslim life and taking an active role in Somali and Afghan refugees, his wife training to be a teacher, and having a strong influence over him and supporting his endeavours to be a good citizen, he not being a threat to society and was unlikely to repeat the same mistake. Accordingly, he deserved an opportunity to seek home detention.
[32] In reply, counsel for the Crown submitted that the Sentencing Act confers a wide discretion that is not to be fettered by formulating any fixed rules for its exercise: R v Barton [2000] 2 NZLR 459. The Court should not readily interfere with a discretionary assessment. In this case, Mr Ali has been convicted of having cannabis in his possession for supply at his home. He has many previous convictions, some for dishonesty, some for assault, others for breach of Court orders and one in 1990 for possessing cannabis plant.
[33] In the circumstances, and having regard to Mr Ali’s past offences which include four charges of breaching periodic detention, we are of the view that the Judge was entitled in her discretion to decline leave to apply for home detention in circumstances where a person had at his home for the purposes of supply cannabis well in excess of the amount required for the statutory presumption. There are no grounds for allowing an appeal against this exercise of the Judge’s discretion.

Result

[34] The appeals against both conviction and sentence, including the appeal against the refusal to grant leave for home detention, are dismissed.

Solicitors:
Crown Law Office, Wellington