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RIKA v R [2005] NZCA 175 (30 June 2005)

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RIKA v R [2005] NZCA 175 (30 June 2005)

Last Updated: 7 August 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA458/04

THE QUEEN

v

WILLIAM WEROHIA RIKA

Hearing: 28 June 2005

Court: Anderson P, Williams and Doogue JJ

Counsel: M S Gibson for Appellant
M D Downs for Crown

Judgment: 30 June 2005

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS

(Given by Doogue J)

Introduction

[1] William Werohia Rika appeals against his conviction following trial by a jury in the High Court at Rotorua of the offence of possession of a Class A controlled drug, namely methamphetamine, for the purposes of supply. He was subsequently sentenced by the trial Judge, Cooper J, to four years and three months imprisonment.
[2] The appeal is on the basis of radical trial error by the appellant’s then counsel, not Mr Gibson. There are two primary submissions. First, that trial counsel erred in introducing the appellant’s previous convictions for minor cannabis offending during the course of the appellant’s own evidence-in-chief. Secondly, that trial counsel erred in disavowing the Judge’s invitation subsequent to his summing-up to direct the jury on how to deal with those prior convictions. In respect of the latter it is effectively submitted that the trial Judge erred in not putting the matter to the jury despite counsel’s disavowment.

Background

[3] On 11 December 2003 the police executed a search warrant (issued under s 198 Summary Proceedings Act 1957) at 29B Frank Street, Rotorua. The warrant was in respect of offences which had been, or were suspected of having been, committed, namely the unlawful taking of a motor vehicle, theft, and receiving. The appellant was standing on the driveway speaking with the occupant of the address at the time the police executed the warrant. He got into the driver’s seat of a car, and was attempting to start the vehicle when the police approached him.
[4] The appellant supplied his details to the police and was requested to get out of the vehicle so that it could be searched. The police observed him dropping an object between the console and the front passenger’s seat.
[5] The police requested that the appellant remove a belt bag so that it could be searched. A small plastic gram bag was found in the belt bag. The police invoked s 18(2) Misuse of Drugs Act. Upon searching the appellant the police also found a bag of cannabis, a large amount of cash, a glass pipe (for smoking methamphetamine), and various utensils used in the dealing of methamphetamine in the appellant’s clothing. Three gram bags were also found between the passenger’s seat and the console of the vehicle.
[6] The appellant denied all knowledge of the paraphernalia but accepted that the money found was his. He disputed the police evidence as to where various items were found.
[7] In the High Court, in a preliminary ruling on the admissibility of the evidence obtained by the police in the course of the searches of the car and the appellant’s person, Rodney Hansen J found that the evidence was admissible against the appellant, the breach (that the warrant did not allow for a search of the appellant’s clothing) being merely technical. The result, the Judge found, would have been the same if there was no breach and the searches had merely been undertaken in a different order.
[8] At trial the appellant continued to deny all knowledge of the paraphernalia found upon him when giving evidence in support of his defence. He elaborated upon his bare denial. He claimed that two of the police officers who said that he was wearing a belt bag were lying. He claimed that one of the police officers had effectively tampered with evidence by placing a mobile phone into the belt bag. He also suggested in cross-examination that the police had tried to "frame" him. To support his defence based on an absence of possession of the incriminating objects he called evidence.
[9] It is common ground that the credibility of the witnesses and the appellant was the central issue in the trial. The jury’s verdict required it to have accepted the evidence of the police officers and to have rejected that of the appellant and his principal witness.
[10] It was common ground that the subject matter of the appellant’s prior minor cannabis offences was introduced into evidence at the instigation of his trial counsel. This aspect will be discussed further at a later stage.
[11] It was also common ground that the Judge’s summing-up did not refer to the appellant’s prior convictions. There was the usual warning against prejudice but nothing specific in respect of the prior offending. The record of the trial discloses the following note by the trial Judge:

My summing-up in this matter was concluded at 12.45 following a question I asked counsel, the jury having retired to commence its deliberations, whether there were any matters arising from my summing-up. One matter was raised by Mr Temm concerning evidence which had been led from the accused by Mr Edward in evidence-in-chief. The evidence related to previous convictions for drug offending involving cannabis. In response to Mr Edward’s question, the accused said that he had only been fined for those offences and that he had never been convicted for a drug dealing offence of any kind (see p46, lines 31-36). In cross-examination, Mr Temm had near the beginning of his questions (p52, line 10 and following) cross-examined the accused on those matters, drawing out the detail of the offences. I did not refer to that evidence in my summing-up, being of the view that it was not of probative value in relation to the present charge and not seeing any need to warn the jury about it, the issue having been raised by defence counsel himself. On the question of whether the jury having retired they should be invited back into Court for me to say something about those matters, Mr Edward asked me not to take that step. He thought it would elevate the matter in a way which distorted its importance and he was content that the transcript would be a sufficient foundation for the deliberations of the jury on this matter. Mr Temm confirmed that he had raised the matter as really something on which the defence might have thought I should comment. As I have indicated above, Mr Edward did not wish me to take the matter further.

Evidence as to the appellant’s complaints

[12] The appellant in respect of his evidence as to his previous minor cannabis convictions deposes:

Prior to my trial my counsel had not discussed with me the prospect of giving evidence of my previous convictions. The first time he raised this issue was during the course of my examination-in-chief. I had started giving evidence during the morning adjournment. Following the luncheon adjournment I had resumed my position in the witness box and the jury were returning to the courtroom when my counsel quietly said to me that he thought he had better bring up my previous convictions. I asked him why and he replied because if we do not the Crown will bring them up and it would be better if the jury heard it from us instead of them.
This suggestion left me with my ‘mouth wide open’ and wondering to myself why this should be so. I had been told by a friend that I would not have to mention my previous convictions but I did not know for sure. I thought my counsel would know the law better than me so I merely shrugged my shoulders. By this time the jury had returned to their seats and there was no further opportunity for discussion before I continued to give my evidence.

[13] The appellant further deposes that his counsel dealt with the matter raised following the Judge’s summing-up without reference to him.
[14] Trial counsel has answered the appellant’s assertions about the giving of evidence relating to his prior cannabis convictions in the following manner:

The evidence of drugs and paraphernalia located on the appellant and in the motor vehicle was particularly compelling and required explanation. It was my view that the appellant was best to advance a defence on the basis that he might be a minor cannabis user but was not a methamphetamine dealer. This was capable of being advanced on the evidence of the location of the drugs found on the appellant as compared to the drugs and items located in the black bag and belt bag.
Accordingly, to lead the appellant’s minor cannabis convictions (and nominal penalty) was a demonstration to the jury of the fact that the appellant was not trying to hide them, that this was a man who was prepared to be honest about his past and should be believed when he stated he knew nothing about the presence of methamphetamine, particularly when the two drugs were not located together. This tied in with the evidence of Dinsdale and Rauhina.
A further matter for consideration was the issue of credibility. The appellant asserted that the police officers had to be lying. This required some challenge to the police officers’ integrity and raised the possibility that leave would be sought to cross-examine the appellant on his cannabis convictions. While a grant of leave is debatable, it was still a possibility and again it was considered preferable to demonstrate to the jury that the appellant had nothing to hide and his evidence was honest and reliable and should be preferred to the police evidence.
This issue was given careful consideration by me and discussed with the appellant. At no stage did he query the merits of leading the convictions from him in this manner or at that time.
The appellant has not queried it since with me and has been raised only at this stage by his present counsel in support of this appeal.
As previously stated, the appellant agreed that he would give evidence in relation to his previous convictions.

[15] Trial counsel was cross-examined upon his affidavit. He acknowledged the appellant was possibly correct in respect of the timing of events.

Was the introduction of the appellant’s prior convictions a radical error by his trial counsel?

(1) Appellant’s submissions

[16] It was submitted for the appellant that trial counsel erred in introducing the appellant’s prior cannabis convictions in evidence. It was submitted that their introduction could only serve to undermine the appellant’s credibility and that their number was not qualified in evidence-in-chief.
[17] The principal issue at trial, it was submitted, was whether the appellant was in possession of the methamphetamine and cannabis. An admission that he had previously possessed cannabis when the possession of cannabis was in issue was said to be highly prejudicial to the appellant.
[18] It was further submitted that there was no informed consent by the appellant to the course adopted and that trial counsel accepted that the issue was only raised with the appellant during the course of his evidence-in-chief.
[19] It was in addition submitted that the explanation for introducing the convictions, namely that the appellant could be cross-examined in respect of them because of his challenge to the credibility of the Crown witnesses, was simply conjectural and unjustified. If it had subsequently transpired that the Crown was given leave to cross-examine the appellant upon his prior convictions, which it was submitted was highly unlikely, then the impact of such cross-examination could have more appropriately been met during the re-examination of the appellant.

(2) Crown’s submissions

[20] The Crown answered those submissions elaborated upon by Mr Gibson. The Crown submitted that the tactics adopted by trial counsel were understandable, both to portray the appellant as a minor user of cannabis (and thus distinguish him from a dealer in hard drugs) and further to minimise any damage resulting from the possible introduction of his previous convictions as a result of his having put character in issue by attacking the character of prosecution witnesses. The first of those objectives was discussed by trial counsel in his affidavit. It was submitted by the Crown that the explanation is self-explanatory and perfectly understandable.
[21] The Crown further submitted that the second objective was justifiable as, while leave may not have been given to cross-examine the appellant on his record, he undoubtedly risked an adverse ruling because of his attack on the character of the prosecution witnesses. For the Crown it was said that to suggest two police officers were deliberately misleading the Court by giving false evidence and implying the police were out to "frame" him, the appellant had squarely and strongly put character in issue. Whether leave would have been granted to cross-examine the appellant about his record was said to be irrelevant. The issue, rather, in the Crown’s submission, was whether there was a reasonable apprehension for the belief on the part of trial counsel for the appellant that such a ruling might be made. It was submitted that there was and that accordingly there could be no basis for suggesting in this case that was a radical error on the part of trial counsel.

(3) Comment

[22] We have no doubt that trial counsel was justified in adopting the course that he did, notwithstanding that another counsel may have adopted the course now proposed by the appellant’s present counsel. For the appellant to say that he was a minor user of cannabis could be said to add to his credibility when the drug offending with which he was now charged was of such a different character. It was evidence that could well have added to his credibility rather than subtracted from it. It is commonplace that minor cannabis offending is regularly acknowledged before juries without it leading to wrong convictions. It was hardly likely to rebound against the appellant when the alleged offending related to methamphetamine.
[23] We are not at all sure trial counsel could justifiably surmise that there was a high probability that the Crown would seek leave to cross-examine the appellant about his prior convictions and that such leave might be given. We incline to the view that was highly unlikely. However, it would have been poor solace for the appellant to have to rely upon re-examination should such a risk have been proven to be a real one. Thus while we would not support the course taken by trial counsel for the second reason relied upon, we do not criticise it.
[24] However the matter is approached, we can see no error, let alone radical error, on the part of trial counsel in calling the evidence in question.
[25] We make no comment on the time when trial counsel communicated with the appellant about this topic. It may have been preferable that the subject was discussed at an earlier stage but it may also have been that it was the manner in which the appellant gave his evidence that caused trial counsel to reconsider his approach to the issue. The timing of the discussion cannot affect the question of whether there was radical counsel error leading to a miscarriage of justice.
[26] However the matter is approached, we see nothing in this ground of appeal.

Should trial counsel have sought a direction from the trial Judge on the issue of the prior convictions or should the trial Judge have given such a direction in any event?

(1) Appellant’s submissions

[27] It was submitted for the appellant that trial counsel erred in not encouraging a direction as the convictions in question were said to be similar to the offences with which the appellant was charged. The convictions related to three separate offences of possession of a Class C controlled drug and to an offence of cultivation of cannabis. It was said that they were similar to the possession of methamphetamine charge that the appellant faced. It was further submitted that by disavowing a direction on the use to be made of the previous convictions there was the potential for the jury to use them in an impermissible way as reflecting on the appellant’s guilt rather than on his credibility.
[28] Mr Gibson for the appellant relies upon R v M [2002] NZCA 3; (2002) 19 CRNZ 300 at 306:

[18] The need for the Judge to give an appropriate warning to the jury in cases of this kind is summarised by Phipson at para 18-62 in these terms:

It is firmly established that, where there is a danger of the jury taking previous convictions as going to the issue as well as or instead of as going to credibility, the judge must warn the jury that they should use it only for its permissible purpose and should eschew use of it directly to show guilt.

[19] The leading English authorities are R v Morrison (1911) 6 Cr App R 159, R v Inder (1977) 67 Cr App R 143, and R v McLeod [1994] 1 WLR 1500, 1513. The learned authors of Phipson refer to certain difficulties but there is no doubt that the jury should be directed as indicated. While doubting the effectiveness of the warning, the learned authors of Cross on Evidence (NZ ed) proceed on the basis that the warning is nevertheless required: see para 14.21. We consider that to be the correct approach. Unless the Judge gives such a warning, the jury may use the evidence in an impermissible way contrary to the rule confirmed in Anderson and noted in para 11 above.

[29] R v Kalo (1984) 1 CRNZ 412 (CA) was cited by Mr Gibson as an example of the point stressed in R v M. It was there noted that it is "important that a jury should be warned as to the limits to which evidence of previous convictions may be put" (415).
[30] Thus it was submitted that there should have been a direction in this case and that counsel should have sought it. It is the clear inference from this submission that the Judge should in any event have given a direction, notwithstanding that he had earlier determined for reasons expressed by him not to give such a direction.

(2) Crown’s submissions

[31] For the Crown it was accepted that R v M is authority for the proposition that ordinarily a jury ought to be told how it may use evidence of previous offending of a defendant and that such use extends only to credibility and not guilt. However, that was a case, it was submitted, where the Judge gave a direction that could have been misconstrued as suggesting that the evidence could be used for the purposes of determining guilt, so that the direction was plainly wrong.
[32] Here it was submitted there was little reference by either party to the previous convictions of the appellant, none of which related to actual dealing in controlled drugs, which was the issue for the jury at the trial. Thus it was submitted that there was every reason why trial counsel did not want the matter brought to the attention of the jury by a judicial direction. In any event, it was submitted that there was no real risk that the jury would use the evidence as proof of guilt of the appellant. They were sufficiently distinct in nature so as to make such a risk most unlikely. The trial Judge clearly considered the matter and took that view. Thus it was submitted that the Court can clearly differentiate the case from R v M.

(3) Comment

[33] As we have already made clear, the submissions for the appellant are directed towards counsel error. However, if there was any error in this area, it was the determination of the trial Judge not to sum-up in accordance with R v M. It was thoroughly understandable that trial counsel would not at the end of the summing-up ask for the jury to be recalled for the purpose of drawing attention to the matter of the previous convictions which he had introduced into the trial. It is a reasonable inference that the jury would in any event have understood that those convictions were irrelevant for the issue before them or they would not have been brought into the evidence by the appellant’s counsel.
[34] We note the Judge’s view that the evidence of the previous convictions "was not of probative value in relation to the present charge". We also note his view that he did not see any need to warn the jury about it when the issue had been raised by trial counsel for the appellant. While we think it would have been better if the Judge had summed-up in the usual way in accordance with R v M, we do not see any miscarriage of justice arising from his failure.
[35] The point in R v M is that there should be a direction by the trial Judge where there is a danger of the jury taking previous convictions as going to the issue as well as or instead of going to credibility. Here there was little or no such danger as the evidence was of an entirely different type of offending of a minor nature, totally unrelated, except to the extent that it involved drug offending, to the serious offence the jury was considering. As we have already noted, the jury was hardly likely to think that it was relevant to the offending before them when the subject had been brought into evidence by the appellant’s counsel. If the prior offending had related to the supply of drugs it may have been more arguable that some warning was required, but that was not the case. This case is clearly distinguishable from R v M.
[36] Once the Judge had given his summing-up without giving any warning along the lines of that suggested in R v M, it was thoroughly understandable that the appellant’s trial counsel should not seek an additional direction upon the topic. If he had done so and the jury had been recalled for the Judge to give an R v M type direction, there must have been a real risk that the jury, despite any such direction, would have placed more emphasis upon the prior convictions than if there was no mention of them at all at that time. As was submitted from the Crown, the position is entirely distinguishable from R v M where there had been emphasis upon the prior convictions.
[37] We do not see that this ground of appeal adds anything to the first ground of appeal. Counsel’s response to the Judge at the end of the summing-up could in no sense be categorised as a radical error on his part. Trial counsel has substantial criminal trial experience, particularly before Rotorua juries. The judgment call made by him is one which cannot be criticised.

General

[38] The submissions for both counsel also addressed the proviso to s 385 Crimes Act 1961. We do not need to traverse that aspect of the matter given the findings already made.

Decision

[39] For the reasons given the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington

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[3]	On 11 December 2003 the police executed a search warrant (issued under s 198 Summary Proceedings Act 1957) at 29B Frank Street, Rotorua. The warrant was in respect of offences which had been, or were suspected of having been, committed, namely the unlawful taking of a motor vehicle, theft, and receiving. The appellant was standing on the driveway speaking with the occupant of the address at the time the police executed the warrant. He got into the driver’s seat of a car, and was attempting to start the vehicle when the police approached him.
[4]	The appellant supplied his details to the police and was requested to get out of the vehicle so that it could be searched. The police observed him dropping an object between the console and the front passenger’s seat.
[5]	The police requested that the appellant remove a belt bag so that it could be searched. A small plastic gram bag was found in the belt bag. The police invoked s 18(2) Misuse of Drugs Act. Upon searching the appellant the police also found a bag of cannabis, a large amount of cash, a glass pipe (for smoking methamphetamine), and various utensils used in the dealing of methamphetamine in the appellant’s clothing. Three gram bags were also found between the passenger’s seat and the console of the vehicle.
[6]	The appellant denied all knowledge of the paraphernalia but accepted that the money found was his. He disputed the police evidence as to where various items were found.
[7]	In the High Court, in a preliminary ruling on the admissibility of the evidence obtained by the police in the course of the searches of the car and the appellant’s person, Rodney Hansen J found that the evidence was admissible against the appellant, the breach (that the warrant did not allow for a search of the appellant’s clothing) being merely technical. The result, the Judge found, would have been the same if there was no breach and the searches had merely been undertaken in a different order.
[8]	At trial the appellant continued to deny all knowledge of the paraphernalia found upon him when giving evidence in support of his defence. He elaborated upon his bare denial. He claimed that two of the police officers who said that he was wearing a belt bag were lying. He claimed that one of the police officers had effectively tampered with evidence by placing a mobile phone into the belt bag. He also suggested in cross-examination that the police had tried to "frame" him. To support his defence based on an absence of possession of the incriminating objects he called evidence.
[9]	It is common ground that the credibility of the witnesses and the appellant was the central issue in the trial. The jury’s verdict required it to have accepted the evidence of the police officers and to have rejected that of the appellant and his principal witness.
[10]	It was common ground that the subject matter of the appellant’s prior minor cannabis offences was introduced into evidence at the instigation of his trial counsel. This aspect will be discussed further at a later stage.
[11]	It was also common ground that the Judge’s summing-up did not refer to the appellant’s prior convictions. There was the usual warning against prejudice but nothing specific in respect of the prior offending. The record of the trial discloses the following note by the trial Judge:

[13]	The appellant further deposes that his counsel dealt with the matter raised following the Judge’s summing-up without reference to him.
[14]	Trial counsel has answered the appellant’s assertions about the giving of evidence relating to his prior cannabis convictions in the following manner:

[16]	It was submitted for the appellant that trial counsel erred in introducing the appellant’s prior cannabis convictions in evidence. It was submitted that their introduction could only serve to undermine the appellant’s credibility and that their number was not qualified in evidence-in-chief.
[17]	The principal issue at trial, it was submitted, was whether the appellant was in possession of the methamphetamine and cannabis. An admission that he had previously possessed cannabis when the possession of cannabis was in issue was said to be highly prejudicial to the appellant.
[18]	It was further submitted that there was no informed consent by the appellant to the course adopted and that trial counsel accepted that the issue was only raised with the appellant during the course of his evidence-in-chief.
[19]	It was in addition submitted that the explanation for introducing the convictions, namely that the appellant could be cross-examined in respect of them because of his challenge to the credibility of the Crown witnesses, was simply conjectural and unjustified. If it had subsequently transpired that the Crown was given leave to cross-examine the appellant upon his prior convictions, which it was submitted was highly unlikely, then the impact of such cross-examination could have more appropriately been met during the re-examination of the appellant.

[22]	We have no doubt that trial counsel was justified in adopting the course that he did, notwithstanding that another counsel may have adopted the course now proposed by the appellant’s present counsel. For the appellant to say that he was a minor user of cannabis could be said to add to his credibility when the drug offending with which he was now charged was of such a different character. It was evidence that could well have added to his credibility rather than subtracted from it. It is commonplace that minor cannabis offending is regularly acknowledged before juries without it leading to wrong convictions. It was hardly likely to rebound against the appellant when the alleged offending related to methamphetamine.
[23]	We are not at all sure trial counsel could justifiably surmise that there was a high probability that the Crown would seek leave to cross-examine the appellant about his prior convictions and that such leave might be given. We incline to the view that was highly unlikely. However, it would have been poor solace for the appellant to have to rely upon re-examination should such a risk have been proven to be a real one. Thus while we would not support the course taken by trial counsel for the second reason relied upon, we do not criticise it.
[24]	However the matter is approached, we can see no error, let alone radical error, on the part of trial counsel in calling the evidence in question.
[25]	We make no comment on the time when trial counsel communicated with the appellant about this topic. It may have been preferable that the subject was discussed at an earlier stage but it may also have been that it was the manner in which the appellant gave his evidence that caused trial counsel to reconsider his approach to the issue. The timing of the discussion cannot affect the question of whether there was radical counsel error leading to a miscarriage of justice.
[26]	However the matter is approached, we see nothing in this ground of appeal.

[29]	R v Kalo (1984) 1 CRNZ 412 (CA) was cited by Mr Gibson as an example of the point stressed in R v M. It was there noted that it is "important that a jury should be warned as to the limits to which evidence of previous convictions may be put" (415).
[30]	Thus it was submitted that there should have been a direction in this case and that counsel should have sought it. It is the clear inference from this submission that the Judge should in any event have given a direction, notwithstanding that he had earlier determined for reasons expressed by him not to give such a direction.

[33]	As we have already made clear, the submissions for the appellant are directed towards counsel error. However, if there was any error in this area, it was the determination of the trial Judge not to sum-up in accordance with R v M. It was thoroughly understandable that trial counsel would not at the end of the summing-up ask for the jury to be recalled for the purpose of drawing attention to the matter of the previous convictions which he had introduced into the trial. It is a reasonable inference that the jury would in any event have understood that those convictions were irrelevant for the issue before them or they would not have been brought into the evidence by the appellant’s counsel.
[34]	We note the Judge’s view that the evidence of the previous convictions "was not of probative value in relation to the present charge". We also note his view that he did not see any need to warn the jury about it when the issue had been raised by trial counsel for the appellant. While we think it would have been better if the Judge had summed-up in the usual way in accordance with R v M, we do not see any miscarriage of justice arising from his failure.
[35]	The point in R v M is that there should be a direction by the trial Judge where there is a danger of the jury taking previous convictions as going to the issue as well as or instead of going to credibility. Here there was little or no such danger as the evidence was of an entirely different type of offending of a minor nature, totally unrelated, except to the extent that it involved drug offending, to the serious offence the jury was considering. As we have already noted, the jury was hardly likely to think that it was relevant to the offending before them when the subject had been brought into evidence by the appellant’s counsel. If the prior offending had related to the supply of drugs it may have been more arguable that some warning was required, but that was not the case. This case is clearly distinguishable from R v M.
[36]	Once the Judge had given his summing-up without giving any warning along the lines of that suggested in R v M, it was thoroughly understandable that the appellant’s trial counsel should not seek an additional direction upon the topic. If he had done so and the jury had been recalled for the Judge to give an R v M type direction, there must have been a real risk that the jury, despite any such direction, would have placed more emphasis upon the prior convictions than if there was no mention of them at all at that time. As was submitted from the Crown, the position is entirely distinguishable from R v M where there had been emphasis upon the prior convictions.
[37]	We do not see that this ground of appeal adds anything to the first ground of appeal. Counsel’s response to the Judge at the end of the summing-up could in no sense be categorised as a radical error on his part. Trial counsel has substantial criminal trial experience, particularly before Rotorua juries. The judgment call made by him is one which cannot be criticised.