R v Nuku CA287/04 [2004] NZCA 391 (21 October 2004)

Last Updated: 21 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA287/04

THE QUEEN

v

IAN HAPETA WILLIAM NUKU

Hearing: 11 October 2004 Coram: McGrath J
Goddard J Randerson J

Appearances: S J Gill for Appellant
M F Laracy for Crown Judgment: 21 October 2004

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

Introduction

[1] The appellant was convicted on 3 June 2004 after a trial in the High Court before France J on two counts of possession of class A drugs for supply, one count of possession of cannabis plant for supply, and one count of receiving stolen property. In each case, the appellant was charged jointly with his partner, a Ms McGregor. She was convicted on the three drug-dealing counts but was found not guilty of receiving. Both the appellant and Ms McGregor were acquitted on a further

R V I H W NUKU CA CA287/04 21 October 2004

count of receiving. The appellant was subsequently sentenced to five years imprisonment.

[2] Mr Nuku now appeals solely against conviction. His appeal against sentence was abandoned at the hearing before us.

[3] There are two grounds advanced in support of the conviction appeal:

1. That the Judge wrongly exercised her discretion to allow the Crown to call rebuttal evidence from a Mr Beck.

2. A reference by Mr Beck to the appellant having previously been in jail led to a miscarriage of justice.

Background facts

[4] On 19 September 2003, the police executed a search warrant at 132 Hair Street, Wainuiomata. Both the appellant and Ms McGregor were present at the address when the search was undertaken. Two children of the appellant were also present. The police found 12.9 gms of methamphetamine, having a street value of around $10,000, 41 tabs of LSD with a street value of around $1600 and 51.2 gms of cannabis with a value estimated to be between $500 and $900. In addition, the police found stolen power tools valued at approximately $36,000. When the appellant was searched, he had approximately $2200 in cash in his pocket. The windows in the house were covered over and television monitors were found in the lounge. These were linked to a video camera with which a view of the street and a view of the address could be obtained.

[5] The drugs were located in the master bedroom. Also located in the bedroom were papers addressed to the appellant and some addressed to Mr Beck. A box of bone carvings (admittedly owned by the appellant) was found in the same bedroom.

[6] It was the Crown’s case that the appellant and Ms McGregor lived at the address and occupied the master bedroom. The Crown accepted that the property
may have been frequently visited by others and that it was used regularly for band practices. But the Crown’s case was that the appellant and his partner were the only permanent residents at the property.

[7] During the course of the search, the appellant told Detective Sergeant Levy he regularly used methamphetamine and said he was “hooked on it”. The appellant also told the Detective he rented the address at 132 Hair Street for $170 per week. He also informed him that he was a bone carver.

[8] After his arrest, the appellant sought bail in the High Court. In a memorandum dated 19 September 2003, the appellant’s counsel informed the Court that:

The Applicant lives at 132 Hair Street, Wainuiomata, and has lived at that same address for the last six years.

[9] Prior to depositions, Detective Sergeant Levy wrote to the appellant’s counsel on 21 January 2004 making disclosure of a number of statements, including statements from the owner of the property, her son and Mr Beck. The appellant’s counsel was informed that the police did not intend calling those witnesses unless the appellant’s occupancy of the property came into contention. There was no response to that letter.

[10] The key points of Mr Beck’s statement were:

1. He had previously lived at the address but had not lived there since mid-2001.

2. His mail still went to the address and he went there occasionally to get it.

100. He and the appellant were good friends and both played in a band together.

4. To assist the appellant, he let him use a bank account in Mr Beck’s name to pay the rent for the property. That was achieved by the appellant’s unemployment benefit being paid into the account. That sum was then paid on a weekly basis to the owner of the property to meet the rent.
5. Mr Beck had not himself contributed to the rent for approximately two years.

6. The appellant and Ms McGregor occupied the master bedroom in the house.

[11] Prior to trial, the Crown was supplied by the appellant’s counsel with a statement made by a Mr Anderson, who claimed to be a friend of the appellant. He said he had left the drugs and stolen property at the subject address shortly before the warrant was executed. He claimed to have stayed at the house the night before. A subsequent police interview of Mr Anderson showed he was lying in material respects in creating a defence for the appellant. At trial the Judge ruled that the police notes of the interview should be disclosed to the defence. Significantly, it was part of Mr Anderson’s account to the police that the appellant was living at the subject address at the relevant time. Prior to trial, the Crown had understood that Mr Anderson would be called but, in the event, he was not.

Evidence at trial

[12] During the Crown case, the appellant’s counsel cross-examined a witness from Work & Income New Zealand and obtained evidence from her that the appellant had given an address for benefit purposes at Kilbirnie up until 16 October 2003, after the date of the police search. The address for benefit purposes was then changed to the Hair Street, Wainuiomata address. The Kilbirnie address was that of the appellant’s father. The witness was also asked by the appellant’s counsel whether she had the relevant file for Mr Beck but the matter was not pursued after the Crown prosecutor objected, indicating that the defence could call Mr Beck if they wished to do so.

[13] At a later point, Detective Sergeant Levy was cross-examined about Mr Beck. The Detective was asked whether the appellant had told him that “Dean Beck resides at the address albeit on an irregular basis”. The Detective responded that he had noted in his notebook that Mr Beck resided at the address on an irregular basis. He added that, as a result of his own inquiries, he was satisfied Mr Beck did not
reside at the subject address. When asked whether he was certain that Mr Beck was not present when he searched the place, he replied affirmatively.

[14] We observe that, although there were oblique references to Mr Beck on these two occasions, it was never suggested in cross-examination either that Mr Beck lived at the address, or that he paid or contributed to the rent. If either of those things were to be advanced affirmatively for the appellant, then those propositions should have been put directly to Detective Sergeant Levy (as the officer in charge) at that point.

[15] The Crown case closed without Mr Beck being called. The appellant then gave evidence. Things did not get off to a favourable start for the appellant, as appears from the following passage:

whereabouts do u lve now ? ... 132 Hair Street Wainuiomata.

how lng hve u lived at that address ? ... um last four or five yrs, ths how long tht people own the address since the band’s bn thr.

how lng hve u bn styng thr full tme ? ... um the last three yrs i hven’t bn residng thr ive bn with my old man and i ws away and the last two yrs ive bn residng thr.

whereabouts were u lvng with yr dad ? ... Kilbirnie, 2 Ross St.

[16] When asked who was renting the Hair Street property, the appellant stated that bands were renting the house for practices. The house was also used for parties. He said he went to the property just for band practices and to carry out his bone carving work. At the time the police searched the address, he and Ms McGregor and the two children had only been there the night before and were not staying permanently at the property. They had not slept in the master bedroom but in another smaller bedroom. He stated there were plenty of people who stayed at the house. He named three others, including Mr Beck. He admitted having smoked methamphetamine in the property the evening before. He also accepted that he had stayed many times in the house, usually sleeping on the couch.

[17] When cross-examined, it was put to him that Mr Beck had moved out of the address in mid-2001. The appellant denied Mr Beck had moved out of the property and stated he was still getting mail at the Hair Street address. It was also put to the
appellant that Mr Beck was not paying rent because he had not lived at the Hair Street address for at least two years. The appellant responded that Mr Beck was paying rent, as were all the other band members. The appellant denied that he and Ms McGregor were the only two people living at the address at the time of the police search. He added that he lived at the address “on and off” like everyone else. He said the property had always been an open home.

[18] The defence case closed with the appellant calling two witnesses who deposed to having purchased bone carvings from him.

Application to call rebuttal evidence

[19] After the close of the defence case, the prosecutor applied to call Mr Beck to give rebuttal evidence. In her ruling, the Judge noted that Mr Beck’s statement included his assertion that he had not lived at the subject address since 2001 and that he no longer paid any money towards the rental of that property. The Judge recorded the prosecutor’s submission that the Crown had not been able to address this matter in its evidence because, prior to the appellant giving evidence, he had not denied living at Hair Street. The Judge noted the letter of 21 January 2004 which the officer in charge had written to the appellant’s counsel about Mr Beck’s evidence and the lack of any response to it. She also recorded the grounds of opposition to the application but concluded that it was appropriate to exercise her discretion in favour of the Crown. She stated:

The accused in his statement to the Police had given Hair Street as his address. Further, while the defence case had been one about possession the signals had been that the evidence which might be called was that of Mr Anderson to say the drugs were his rather than what transpired.

Mr Beck’s rebuttal evidence

[20] Mr Beck confirmed that he had not lived at the subject address for two to three years. He also confirmed that he had made available to the appellant a bank account which he was not using and that the appellant paid his unemployment benefit into that account. The rent for the address was paid through that account. He
did not contribute to the payment of rent although he did occasionally return to the property to get his mail. When asked how long the appellant and Ms McGregor had been together, he responded that he was not sure. He was also asked specifically which room in the house they occupied, but he said he could not help on that issue, adding that he did not go to the address very often.

[21] Significantly, he was not seriously challenged on this evidence. It was put to him that all the band members were “chipping in for the rent”. He agreed that was the position previously but had not been the case for some time. It was also suggested to him that he was living at the address “on and off”. Again, he agreed that was so previously but had not been the case for some two to three years. He agreed that the address was “a band practice place”.

[22] Relevantly to the second ground of appeal, when asked about the payment of the appellant’s benefit money into the bank account, Mr Beck responded:

Yeah, when he got out of jail last time he was in there, yeah. He had no way of getting his money so I said dude you can use my bank account.

[23] At that point, the appellant’s counsel asked to see the Judge in chambers. The jury retired for approximately 45 minutes, after which the Judge directed the jury as follows:

Madam Foreman, members of the jury, there is just one matter I wanted to briefly refer to, the witness on the stand has made passing reference to Mr Nuku having been in jail. You should forget that, its not uncommon for someone to have a chequered past but that’s completely irrelevant to this case, you don’t have any evidence about why he was there and I just stress it is unrelated to this case so put that out of your minds and I will say something further to you about that in summing up.

Rebuttal evidence – principles

[24] There is no dispute about the relevant principles. The leading authority in New Zealand is the decision of this Court in R v Lee [1976] 2 NZLR 171, 174. As a general principle, all evidentiary material relied upon by the prosecution should be adduced before the close of the prosecution case, if then available. The discretion to permit the Crown to call rebuttal evidence is to be exercised sparingly and, in
general, should not be allowed where its purpose is merely to fill in gaps in the Crown case that become apparent after the defence has disclosed its hand and which could not reasonably have been anticipated from the outset. In the end, however, the fundamental consideration “must always be what is right and proper to serve the interests of justice, using that word, of course, in its wide sense”: Lee at 174.

[25] We would add that we endorse the remarks of Mustill LJ in R v Munnery [1992] 94 Cr.App.R 164 at 172-173. Delivering the judgment of the Court, his Lordship observed that the trial Judge “must be left with some degree of freedom to meet the various and unpredictable problems which may arise during the trial.” A Judge should keep in mind “the strictly adversarial nature of the English criminal process, whereby the cases for the prosecution and the defence are presented consecutively in their entirety.” However, his Lordship went on to say:

These are important considerations which the judge must always bear in mind, but they are not necessarily conclusive. Tactics are a legitimate part of the adversarial process, but justice is what matters: justice to the public, represented by the prosecution, as well as to the defendant. Undeniably, if he had declined to admit the evidence he could not have been criticised. The question is whether by letting it in he stepped outside the reasonable bounds of the discretion and thereby created a real risk of injustice.

Rebuttal evidence – submissions

[26] For the appellant, Mr Gill’s essential submission was that the issue of possession and control of the drugs found at the address was always a central issue. He submitted it ought to have been apparent to the Crown from his line of cross- examination that Mr Beck’s occupancy of the property was an issue being pursued by the appellant. It followed, Mr Gill submitted, that the Crown should not have been taken by surprise when the appellant elected to give evidence and to make the assertions he did about Mr Beck’s role as an occupant of the property.

[27] In a careful submission on behalf of the Crown, Ms Laracy accepted that the Crown could not responsibly assert that it was entitled to call rebuttal evidence merely because the defence were suggesting, in cross-examining Crown witnesses, that numerous people, including Mr Beck, spent time at the subject address from time to time. However, Ms Laracy submitted that it was quite another thing for the
appellant positively to claim that Mr Beck continued to live at the property and to pay the rent for it. She submitted that the appellant had full knowledge of Mr Beck’s statement and well knew that his evidence in that respect was false.

Rebuttal evidence – discussion

[28] Substantially for the reasons advanced by Ms Laracy, we accept that the Judge correctly exercised her discretion to allow the Crown to call rebuttal evidence from Mr Beck. Prior to the trial, the indications were that he admitted residing at that property, although he might well assert there were a number of others who visited the property or stayed there from time to time. As well, it had been indicated that the defence would be that the drugs were not owned by the appellant but by the witness Mr Anderson.

[29] During the trial there were suggestions made in cross-examination of Crown witnesses to the effect that Mr Beck resided at the address on an irregular basis. But it was never suggested that he was an occupier of the property at the time it was searched. Nor was it suggested that he was continuing to pay or contribute to the rent.

[30] Ms Laracy was right to accept that the Crown could reasonably have anticipated the appellant giving evidence that others visited the property from time to time, including Mr Beck, but the Crown could not reasonably have anticipated that the appellant would positively assert not only that Mr Beck was an occupier of the property, but also that he was continuing to contribute to the rent. We accept Ms Laracy’s submission that the appellant must have been well aware of the contents of Mr Beck’s police statement. The appellant’s contradiction of that statement was patently false. In that respect, the failure by the appellant’s counsel seriously to dispute Mr Beck’s rebuttal evidence speaks volumes.

[31] We conclude that the Judge correctly exercised her discretion to allow the rebuttal evidence to be called. The Crown could not reasonably have anticipated the line the appellant would take in evidence. To have refused the Crown leave in the circumstances would have resulted in a serious injustice by allowing the appellant’s
false evidence to remain unchallenged. The evidence went no further than correcting the record on these issues and placing the true position before the jury. Mr Beck did not, for example, give any direct evidence about the appellant’s occupancy of the property at the time of the search or which bedroom he occupied.

Second ground of appeal – jail reference

[32] Mr Gill accepted that, by itself, the reference by Mr Beck to the appellant having previously been in jail was of little consequence. However, he submitted that the cumulative effect of the rebuttal evidence was such as to lead to a risk of a miscarriage of justice.

[33] The substratum for this submission has now gone, given our finding on the first ground of appeal. We agree with Mr Gill’s assessment that the reference to the appellant having been in jail previously could not have materially affected the jury’s consideration. The Judge immediately directed the jury to ignore the remark and repeated that direction in her summing up.

[34] In making her ruling on an application for a declaration of mistrial, the Judge referred to the recent authorities of this Court in R v Gray CA 361/96, 20 February 1997, and R v W CA 473/97, 19 March 1998. Those decisions confirmed that the test is whether there is a real danger or a reasonable suspicion that the defendant was or might have been prejudiced by what took place. Inadvertent disclosure of an accused’s imprisonment is not itself sufficient reason to discharge the jury.

[35] As the Judge observed, there was no disclosure of the reason the appellant had been in prison. As well, the case did not depend solely on credibility in view of the physical evidence of the drugs found at the subject address.

[36] We agree with the assessment made by the Judge that juries are more robust than is commonly believed by defence lawyers and that the jury in this case was unlikely to have been influenced by this remark. We accept Ms Laracy’s submission that the Judge’s direction was both orthodox and sufficient to displace any possible prejudice to the appellant.

Result

[37] For the reasons given, the appeal is dismissed.

Solicitors:

Gill & McAsey, Wellington, for Appellant Crown Law Office, Wellington