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Williams v R [2005] NZCA 315 (9 December 2005)
Last Updated: 14 December 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA63/05
CA64/05
CA66/05
CA92/05
CA101/05
THE
QUEEN
v
ROSS
ALEXANDER WILLIAMS
DARRYL JAMES
ABRAHAM
DOUGLAS RONALD
WILLIAMS
DARRYL STUART
WILLIAMS
HAYDEN STUART
ABRAHAM
Hearing: 23-24 November
2005
Court: Hammond, Williams and Gendall JJ
Counsel: F P Hogan for Appellant Ross
Williams
G J King and C J Milnes for Appellant
Darryl Abraham
C J Tennet for Appellant Douglas
Williams
P J A Buckle for Appellant Darryl
Williams
W C Pyke for Appellant Hayden
Abraham
B J Horsley and M F Laracy for
Crown
Judgment: 9 December 2005
All of the appeals against
conviction and sentence are dismissed.
____________________________________________________________________
REASONS
Hammond J [1]
Gendall J [40]
HAMMOND J
Table of Contents
Para No
Introduction [1]
Some procedural issues on the
appeal
Background [6]
The applications
(a) Ross Williams [15]
(b) Darryl James Abraham [26]
(c) Cross-examination [29]
(d) Our determination [38]
Introduction
| [1] | In
early March 2002 the police discovered quite extensive cannabis plots at Kereta,
which is on the Coromandel Peninsula. These
five plots were on DOC land, which
adjoined land owned and occupied by Mr Ross Williams. There were tracks
leading from his property
to these plots, and access to a separate cannabis
drying area, also on DOC land. |
| [2] | Later in
March 2002 the police returned to this area and found that 265 plants in the
four plots – labelled A, C, D and E for
the purposes of this proceeding -
had been substantially harvested. The cannabis yield from the plots, thought to
be likely over
70 kg and with a value of several hundred thousand dollars, had
gone. The Crown case was that it had been sold. Cannabis plants
remained in
plot B. |
| [3] | Covert surveillance of the
area was undertaken by the police and two of the appellants – Hayden
Abraham and Darryl Williams
– were observed working in that plot B on 26
March 2002. Certain other observations were also made by the police which we
will deal with fully later in this
judgment. |
| [4] | In the result, seven charges were
laid involving selling and cultivation of cannabis. After a lengthy trial in
the District Court
at Hamilton all five appellants were convicted on two charges
of selling cannabis and one of cultivating cannabis. They were sentenced
to
varying terms of imprisonment. |
| [5] | Mr Ross
Williams has appealed against his conviction; his oldest son, Douglas Williams
and an associate Darryl Abraham appealed against
their convictions and sentence;
Ross Williams’ youngest son Darryl Williams (aged 19 at the time) and
Darryl Abraham’s
son Hayden Abraham (aged 17 at the time) appeal only
against their sentences. |
Some procedural issues
on the appeal
Background
| [6] | What
appears to us to have been relatively straightforward cannabis prosecutions,
which necessarily turned solely on the strength
of the Crown case against each
of these appellants, attracted a good deal of procedural and evidential
wrangling between counsel
throughout this case, some of which issues have
spilled over into this appeal. |
| [7] | The trial
did not get off to a particularly auspicious start. Mr Ross Williams
claimed that he had paid his former counsel in excess
of $100,000, in effect on
preparatory work leading up to trial, but that counsel would not continue to the
trial when further fees
were not paid. That appellant claims that his counsel
who took over the brief, from former counsel, was handicapped in his
work. |
| [8] | Then, as the District Court trial
stretched out – days literally stretched into weeks and weeks into months
and the trial took
up 11 weeks altogether - the police case was attacked in a
variety of ways, including allegations of police corruption and planting
of
evidence; and it was said that the Crown Solicitor at Hamilton was somehow
acting inappropriately, because of his "mateship"
with one of the defence
counsel. |
| [9] | Faced with this imbroglio, the
District Court Judge issued several dozen formal
rulings. |
| [10] | Then, as appears to happen almost
as a matter of course in trials of this kind, when convictions were entered,
other counsel were
instructed with respect to some of the appellants, and there
are suggestions of counsel incompetence at the first trial, and that
new
evidence has emerged to benefit an
appellant. |
| [11] | It is in this context that a
number of applications in relation to this appeal were filed, and a relatively
large number of affidavits
(some out of time, and without leave) were lodged, as
recently as the week of the appeal. |
| [12] | The
difficulties created thereby for the Court and counsel were exacerbated by the
fact that these appeals were functionally consolidated
and put into a Divisional
Court at Auckland. The volume of the material and the procedural difficulties
which these applications
have given rise to are such that these appeals might
have been better "case managed", with conferences leading up to the setting
of a
fixture. |
| [13] | That said, neither counsel (who
had prepared for the hearing) nor the Court (for efficiency reasons) wanted to
see these appeals go
off. Indeed, it was important to get the sentence appeals
on, because the two youngest appellants are getting close to the end of
their
sentences. It is therefore important to have those appeals
determined. |
| [14] | As the presiding Judge on this
appeal, it therefore fell principally on me to endeavour to see that the various
procedural difficulties
which arose were dealt with as expeditiously, but with
due regard to fairness, as could be mustered in the circumstances. The purpose
of my judgment is to record the course taken by the Court on the various
applications, and the reasons for the Court having proceeded
as it has. I have
invited Gendall J to deliver the judgment of the Court on the merits of the
various appeals, but I now deal with
the applications to adduce fresh evidence,
or where other affidavit evidence has been sought to be
introduced. |
The applications
(a) Ross Williams
| [15] | Mr
Hogan sought leave to adduce fresh evidence, by several affidavits, relating to
the case against Ross Williams. The application
does not fall squarely within
the traditional tests under which this Court will receive fresh evidence. These
are well known and
were discussed in R v Bain [2004] 1 NZLR 638 as
involving a two-stage process. The first stage is to determine whether the
evidence is sufficiently fresh,
credible and cogent to qualify for admission.
The second stage is a more general inquiry as to what impact the fresh evidence
would
have had on the jury. |
| [16] | There are two
areas in which leave was sought to adduce new evidence. First, the evidence of
a surveyor, and secondly evidence of
a son of Ross Williams’ partner as to
a certain heater and its accompanying
box. |
| [17] | We interpolate here that, for rules
purposes, this application does not come squarely within r 12A or r 13B of
the Court of Appeal
(Criminal) Rules 2001, and the procedures detailed
thereunder. There are, of course, also the supplemental powers of this Court
of
Appeal contained in s 389 of the Crimes Act 1961 (and in particular s
389(b)). |
| [18] | Mr Hogan (and we make no
criticism of this in the circumstances) we think saw this more as a "rolled up"
matter going to what he argues
is a fundamental miscarriage of justice. He
agreed with the Court when we put it to him in the course of argument that
really what
he was saying was that, by reason of the conjunction of events which
had occurred, his client had not had a fair trial and that thereby,
a
miscarriage of justice had occurred. |
| [19] | We
have approached Mr Ross Williams’ appeal on the basis that what is at
issue is a broad concern as to a miscarriage of
justice. |
| [20] | The surveyor’s evidence is
designed to establish that the line of sight by the police surveillance team was
such that it would
have been impossible for the officers to have seen what they
said they saw at a point on a certain access track. The evidence is
essentially
a reconstruction, of course (now) some years after the event. Partly the
evidence relates to the state of the vegetation
at various times but it also
relates to what is said to be a physical impediment in relation to the contours
of the land. |
| [21] | This evidence could not
possibly be fresh. This exercise could have been done prior to trial. Indeed a
private investigator, Mr
Bradley, recommended that it be done. But
Mr Hogan argues that it was not done, because of the conjunction of events
surrounding
Mr Ross Williams’
representation. |
| [22] | The second item of evidence
that Ross Williams now wishes to adduce is that from a Mr R Fairbairn, a son of
his partner to the effect
that the appellant provided a gas heater to him and
his mother on 26 March 2002. The Crown’s contention at trial had been
that a heater acquired on that day, along with its box and packaging, had been
in the cannabis drying area near the Western Ridge
Track, and later attempts
made to remove them. Obviously, if the heater found at the cannabis drying area
was that acquired by the
appellant Ross Williams then it was taken by him to
that area or by others at his direction. It was a particularly cogent piece
of
circumstantial evidence. The defence was that the heater box itself was
corruptly "planted" by the police at the site. The evidence
of Mr Fairbairn,
counsel submits, is designed to
show |
(a) The heater bought on 26 March 2002 never was at the drying site; and
(b) The box, which is now acknowledged to belong to that heater, therefore had
to be "planted" there by the corrupt actions of the
police.
| [23] | Apart
from other evidence at trial which enabled inferences to be drawn as to how one
of the appellants got the heater to the site,
the simple fact is that
Mr Fairbairn’s proposed evidence, if true, must have been
known to the appellant at the time of trial, given that it is said that he
delivered the heater to the witness. Further,
the heater itself would have been
able to be produced from Mr Fairbairn’s possession. The appellant was
cognizant of the need
to explain away any link between his purchasing of a
heater and the box that was found in the drying area on the next day. The
defence
case was simply that the heater box at the area was planted by the
police, but the evidence was that a heater found nearby appeared
to match the
box itself. |
| [24] | Evidence by Mr Bradley, an
investigator formerly engaged by the defence, is to the effect that he met with
Ross Williams prior to
trial and no suggestion was made to him that the box
in the drying area was planted by the police. Rather, the appellant’s
claim was that the heater had been purchased on 26 March when the police
took possession of his home and farm and he had given it
to his stepson. The
investigator’s evidence was that he was told by Mr Fairbairn’s
mother that a heater had been received
with its box and the
investigator’s view was that any such heater and box purchased on 26 March
had not been at the farm at Kereta. All
of the investigator’s notes which
related to his interviews with Mr Fairbairn and his mother were made
available to a new investigator
instructed by counsel, Mr O’Sullivan, then
acting for the appellant. This happened on 9 November 2004 during the
course of
the trial, and before the defence opened its case. Evidence of that
second investigator on another point was called by Mr Tennet
for Douglas
Williams. |
| [25] | The proposed evidence is neither
fresh nor new. The matters said to exist were known to the appellant at the
time given that it was
he who acquired a heater on that day and says he gave it
to his stepson accompanied by its box. |
(b) Darryl
James Abraham
| [26] | On
behalf of Darryl James Abraham, Mr King made an entirely orthodox counsel
incompetence application such as is contemplated by r
12A, and both he and
the Crown proceeded correctly in terms thereof.
|
| [27] | The thrust of that application is that it
is said Mr Abraham’s former counsel (Mr Curtis) failed to follow
specific instructions
to introduce certain medical evidence, although this was
expanded in oral argument to encompass the submission that such evidence
should
have been called, irrespective of
instruction. |
| [28] | It was designed to show that
Mr Abraham, at the relevant time, was affected by a hernia condition which
would have thrown doubt on
his ability (or so it was said) to perform certain
things that the Crown alleged he had done. There was a waiver of privilege,
affidavits
were filed under this head, and the counsel concerned
(Mr Curtis) gave evidence before us, which was recorded in the usual
way. |
(c) Cross-examination
| [29] | That
leads to the next point, that of cross-examination. Appellants’ counsel,
particularly Mr King, indicated that they wished
to cross-examine on
certain of the affidavits which had been
filed. |
| [30] | As a matter of caution, the
deponents attended on the Court, and we gave a ruling on whether that course
would be permitted, prior
to counsel embarking upon their submissions on the
merits to the Court. |
| [31] | The question of
cross-examination on affidavits in the event of applications of the above
character, particularly as to fresh evidence,
is not squarely dealt with by the
amended Court of Appeal (Criminal) Rules 2001. Under the former
Practice Note, ([2002] 1 NZLR
788) cross-examination on affidavits was only
by leave (para 7). But that Practice Note was revoked on the coming into force
of
the amended 2001 Rules (see 3 Adams, Criminal Law, at
14-115). |
| [32] | This raises an issue as to
whether, in the absence of a specific provision dealing with cross-examination
on affidavits, this Court
has a discretion as to whether cross-examination
should be permitted. |
| [33] | We consider the
answer to this is in the affirmative. Even in the absence of an express
provision, under r 4(3) of the amended Rules,
this Court has a general
discretion to depart from the Rules for reasons of urgency or for any other
reason. Even assuming, therefore,
that there was a proscription against
cross-examination, this Court could allow it if the circumstances of the case so
required. |
| [34] | In this case, we heard counsel
and determined, as a matter of discretion, that we would not permit
cross-examination on the affidavits,
save in the case of Mr Curtis. And in
his case this was limited strictly to the issue of whether he had been given
specific instructions
to lead the medical evidence to which we have
referred. |
| [35] | Our short reasons for not
allowing cross-examination in the other instances are that we were not at all
persuaded that it would be
useful. In reality, in these appeals, the real issue
is whether the evidence, if assumed to be correct, would have had any force
in
relation to the issues raised on
appeal. |
| [36] | In the result, we received and
read all affidavits which had been tendered, de bene esse. Included
in that list is one expert report (not reduced to affidavit form but which
counsel agreed should be treated as having
been received by
consent). |
| [37] | The affidavits were all received
de bene esse to reserve the right of counsel, in their submissions on the
merits, to argue the relevance or appropriateness of that evidence,
and
submissions were heard from them in this respect.
|
(d) Our determination
| [38] | In
the result, we accepted as being appropriately tendered and read all the
affidavits going to alleged counsel
misconduct. |
| [39] | We do not allow the affidavits
tendered on behalf of Mr Ross Williams as "fresh evidence", and consequentially
the Crown affidavits
under that head will also not be taken into account. The
surveyor’s evidence is not fresh, it is a reconstruction, and it
has
little, if any, force in a case in which the jury went and took an evidential
view on the very point at issue. Nor is Mr Fairbairn’s
evidence fresh,
and its content was known to Ross Williams before
trial. |
GENDALL J
Table of Contents
Para No
The appeals
Background [40]
Grounds
for appeals against conviction [47]
The appellant Ross
Williams [48]
The appellant
Darryl James Abraham [49]
The appellant Douglas Ronald
Williams [50]
The
trial [51]
Common appeal
contentions [64]
Allegations of improper
conduct by police and prosecutor [65]
The prosecutor speaking with
a police witness before
re-examination [69]
Prosecutor’s connection
with defence counsel [74]
Admission of evidence obtained
from searches [78]
Production of the "Links"
photographic booklet [91]
Inadequate representation and
insufficient time for preparation
of counsel for Ross Alexander
Williams [96]
Counsel
error [100]
Counsel error on
the part of trial counsel for Ross Williams [113]
Opinion evidence by experts
who give evidence as to fact [117]
Scene visit [121]
Use of transcript [124]
Misdirections on
summing-up [126]
Crown
prosecutor’s actions [132]
The verdicts were unsafe
through insufficient evidence [134]
Appeals against
sentence [141]
Conclusion [147]
The appeals
Background
| [40] | We
first set out in general terms the thrust of the Crown case and some of the
evidence that it says supports the convictions of each
appellant on the two
counts of selling cannabis and one of cultivating
cannabis. |
| [41] | Once the police had located the
five large plots of cannabis in early March 2002 close to the boundary of
Ross Williams’ property
and to tracks from that property, they set up
surveillance cameras which recorded images of the adjacent homestead and general
area.
Once they found four of the plots had been harvested, and by inference
the harvested cannabis sold, they made crucial observations
on 26 March
2002. |
| [42] | Activity was observed on tracks
leading to various sites (then hidden in bush) and of the homestead of Ross
Williams. This led up
to a meeting with occupants of a white van. A large
black plastic bag, delivered from the growing area, was seen to be placed by
Douglas Williams in the van. Other appellants were present for part of the time
the van was under observation. After the van and
its occupants departed it was
tracked by helicopter and on apprehension some kilometres away a black rubbish
bag containing five
pounds of cannabis was found in bushes, where it had been
thrown by the occupants of the van. The second charge of selling related
to
those events on that day. The police terminated the surveillance operation
later that day when they found the two youngest sons
of Ross Williams and Darryl
Abraham (that is, Darryl Williams and Hayden Abraham) tending to a large
cannabis plot. Those two young
men were apprehended. They were literally
caught in the act. The three other appellants were not then arrested.
|
| [43] | The next day, 27 March 2002 the police
located a clearing in the bush, some distance from the cannabis plots, which was
said to have
been used as a drying area for the harvested cannabis. It had been
largely demolished but gas heaters, without bottles, were found
nearby in bush
beside an access track. |
| [44] | The charge of
cultivation of cannabis arises out of the central operation involving the five
plots seen by the police. The charges
of selling relate to the inference to be
drawn from the disappearance of the products of plots A, C, D and E and the
observed events
of the supply of cannabis to the occupants of the white van on
26 March 2002. |
| [45] | In general, the
Crown’s case was that this was an ongoing large-scale commercial
operation, with the major participants being
Ross Williams and
Darryl Abraham. Ross Williams controlled the site, being adjacent to his
property, and organised the sales of
cannabis. He and Darryl Abraham enlisted
their sons Douglas and Darryl Williams, and Hayden Abraham to cultivate,
harvest and collect
cannabis and deliver it to buyers that had been arranged.
The Crown case was that over the period involved all appellants played
various
parts in the cultivation, harvesting and sale of a very large amount of
cannabis. Its case depended upon police observations,
photographs, and multiple
items (exhibits and observations) of circumstantial
evidence. |
| [46] | All appellants pleaded not
guilty and after a lengthy jury trial all were convicted on the two counts of
selling cannabis and one
count of cultivating
it. |
Grounds for appeals against
conviction
| [47] | The
appeals against convictions by Ross Williams, Darryl Abraham and Douglas
Williams involve multiple grounds. A number overlap.
|
The appellant Ross Williams
| [48] | Mr
Hogan, who was not trial counsel, initially relied upon seven
grounds: |
(1) There was no evidential basis for the convictions of his client – this
was not pursued.
(2) The police conduct was improper and corrupt so as to result in "unsafe and
unfair verdicts".
(3) The trial Judge erred in admitting evidence obtained from an unlawful
search.
(4) The trial Judge misdirected the jury on matters relating to evidence and, by
implication, omitted to properly direct on defence
contention of improper
presentation of evidence by the prosecution.
(5) The Judge’s summing-up was unfair and unbalanced.
(6) Trial counsel had insufficient time to properly prepare and there was
counsel error or failings in the preparation and conduct
of the defence.
(7) There was improper conduct of the police and Crown counsel during
trial.
The appellant Darryl James Abraham
| [49] | Mr
Abraham is now represented by Mr King and Ms Milnes (not trial counsel) who
identify his grounds of appeal
as: |
(1) The verdict was unreasonable and could not be supported having regard to the
evidence.
(2) A miscarriage of justice occurred because of a friendly relationship between
defence counsel and Crown counsel.
(3) Trial counsel was in error in failing to follow the appellant’s
instructions.
(4) Prosecutorial and police conduct during the trial led to a miscarriage of
justice.
(5) The
Judge
| (a) | erred
in her trial ruling as to admissibility of evidence, and a photographic booklet
(the "Links" booklet) that was given to the
jury; |
| (b) | restricted a scene
view; |
| (c) | failed to put the defence case
properly in summing-up; |
| (d) | gave wrong
directions as to out of Court statements by police officers;
and |
| (e) | gave inadequate directions as to
parties. |
(6) Evidence of a detective as an expert witness should not have been permitted
as he was a witness of fact (a ground more fully
argued by
Mr Tennet).
The appellant Douglas Ronald
Williams
| [50] | Mr
Tennet for this appellant submitted multiple grounds on appeal which can
generally be expressed as: |
(1) The verdicts could not be supported by the evidence.
(2) There was wrongful admission of evidence obtained from police searches.
(3) There was misconduct on the part of the police and Crown counsel during the
trial.
(4) The Judge substantially misdirected the jury and failed to put the defence
case properly, namely that police officers had corruptly
"planted" certain
items, later produced in evidence, which came to be part of the circumstantial
evidence in the case.
(5) The Judge gave inadequate directions to the jury on the issue of
parties.
(6) What Mr Tennet described as a "miscellany" of other points, comprised the
following:
| (a) | That
police witnesses as to fact being presented as "expert witnesses" was
improper; |
| (b) | The jury received the transcript
of evidence without a suitable direction from the
Judge; |
| (c) | The production of a photographic
booklet (the "Links" booklet) coupled with a failure to prove the photographs
within it was an error;
and |
| (d) | The Judge
failed to accede to Mr Tennet’s request that the jury be polled –
not pursued. |
The trial
| [51] | For
what may have initially appeared to be a relatively straightforward cannabis
cultivation case, the trial encompassed 11 weeks
and the Judge was required to
make 47 rulings during trial, and one after trial (declining to conduct a poll
of the jury). The Crown’s
case relied upon direct evidence, namely
observations by police surveillance personnel, plus photographs taken of
activity at Ross
Williams’ farm, and incriminating items found at the
plots, drying area, and some appellants’ homes, and upon a wide
variety of
circumstantial evidence which pointed, it said, unerringly to the guilt of each
of the appellants. |
| [52] | The Crown case was
that the five plots of cannabis illustrated a large-scale commercial operation,
70 kg having been harvested and
disappeared in a matter of a few weeks. The
only inference was that it had been sold. It required considerable man-power
and was
not consistent with personal use by anyone. The appellants Darryl
Williams and Hayden Abraham were caught cultivating cannabis in
the last
plot and admitted as much. They were, the Crown says, the labourers and aided
and assisted the three older
appellants. |
| [53] | The cannabis plots, and drying
area, were carefully positioned, and hidden. They were outside the boundaries
of Ross Williams’
land, but easily accessible from it by quad bike, horse,
or foot. Ross Williams owned quad bikes used to provide him and the other
four appellants access to tracks, plots and a drying area where cannabis was
dried in the bush before being sold from the homestead.
Those who went into the
plots had to start out from Ross Williams’ home and return there. On two
occasions the appellant
Darryl Abraham was seen to use farm quad bikes to
transport two young men (Darryl Williams and Hayden Abraham), and was seen near
the plots as well returning with the two passengers to Ross Williams’
house where all three men were seen washing their hands.
Darryl Williams’ fingerprints were found on a black plastic rubbish
bag in Darryl Abraham’s wheelie bin, whose garage
also contained remnants
of cannabis leaf. |
| [54] | On 26 March 2002
Douglas Williams was seen to carry a large plastic bag away from an area, which
the police later ascertained to be
the drying area. When he disappeared into
the bush he did not have the bag with him. Both Douglas Williams and Darryl
Abraham were
seen to later return to Ross Williams’ house without the
bag. A short time later, at 10.27am Douglas Williams and Darryl Abraham
were
seen on a quad bike on the Western Track in the vicinity of what was later
discovered as the drying area. |
| [55] | At 11.28am
a white van with three occupants arrived at the homestead. Ross Williams,
Douglas Williams and Darryl Abraham were seen
talking to the van occupants.
Douglas Williams and Darryl Williams then left the house (yet again) in separate
vehicles, arriving
back together on a quad bike with Douglas Williams holding a
black plastic bag which was seen to be placed in the rear of the white
van. In
the meantime Ross Williams had departed. After the white van was tracked and
stopped several kilometres away, the police
found plastic bags containing five
pounds of cannabis which had been thrown into a bush by the occupants. The
Crown case was that
given the quantity of cannabis that had been seen to be
growing and the events observed on 26 March 2002 the only reasonable inference
was that all cannabis had been harvested in the same manner by the same people
and sold by them. |
| [56] | Multiple items of
circumstantial evidence were relied upon by the Crown. They included cannabis
remnants found on a polar fleece
in Douglas Williams’ garage; items
linking the use of gas heaters through gas bottles were shown to relate to
Douglas Williams’
bank account when gas bottles were refilled on 18 and
21 March 2002 and charged to him; a handwritten note, which related to a
roster
for the drying area and gas bottle filters was also located; disposable
blue gloves (and a partially used packet of such gloves)
had been found at the
drying area in the bush and identical gloves were found in the garages of
Ross Williams and Douglas Williams;
pieces of type of twine, similar
to that found to be used at the drying area, was then found in garages; white
tape was in Douglas
Williams’ belt bag identical to white tape found
and used at the cannabis plot. |
| [57] | Apart
from the blue gloves at the scene, green twine matching that at the plots and a
gazebo of similar design to that found at the
scene was found in
Ross Williams’ shed, as was a "Gas Craft" heater box. A Gas Craft
heater had been found near the scene,
although apparently dismantled. A rear
cover of a Gas Craft heater with identifying features on it was found in
Ross Williams’
garage. A rear cover of a "Gasmaster" heater was also
located there. Those covers matched disassembled heaters which were among
five
heaters found near the drying site. All had been dismantled, without gas
bottles. |
| [58] | The state of the drying area,
dismantled (and jettisoned) heaters, the Crown said, supported the proposition
that after the two youths
were caught on 26 March 2002 someone went to the
drying area to dismantle it and to remove the heaters and gas bottles and other
identifying items. This occurred before the police found that site the next day
on 27 March. |
| [59] | Scissors purchased with Ross
Williams’ EFTPOS card were found in one of the plots as well as the
accompanying packet being in
the drying area. Some time later bolt cutters were
located at Ross Williams’ house and short cut lengths of wire in one plot
were examined by ESR, the evidence being that one cut matched those bolt
cutters. The defence called evidence that those bolt cutters
were lent to
Ross Williams after 26 March 2002.
|
| [60] | Ross Williams’ quad bikes were used
to access the plots from tracks on his farm, and the heater box he had obtained
on 26 March
was found in the drying area on 27
March. |
| [61] | Darryl Abraham was the owner of a
Red Nissan utility vehicle seen to arrive at 5.10pm on 22 March (35 minutes
after he was driving
the quad bike with the two younger men which suggests it
was being brought to the farm by another) and again at 6.55am on 25 March
and
9.37am on 26 March 2002. In his garage was bait station similar to one found at
the plot site; he was photographed near the
plots; cannabis remnants were found
in his garage and in a black rubbish bag in his wheelie bin, upon which were
Darryl Williams’
fingerprints. |
| [62] | At
trial, the defence mounted a strong and vigorous attack upon police
officers’ conduct, integrity and honesty. Some counsel
submitted that
items had been planted and evidence corruptly manufactured and that perjured
evidence had been given in Court. Defence
counsel’s closing addresses
bluntly alleged corruption. That could have been the only way the presence of
certain exhibits,
found at the scene, could have been explained
away. |
| [63] | The defence contentions were that
the inferences the Crown invited the jury to find could not be reached and there
was nothing more
than suspicion arising out of innocent items found, and the
Crown theory required speculation and
guesses. |
Common appeal contentions
| [64] | We
first deal with grounds that have been presented by appellants’ counsel,
and which are common to all three appellants in
respect of their appeals against
conviction. They relate to allegations of police and prosecutorial misconduct
during the trial;
of police corruption, perjury and planting of evidence (only
advanced by Ross and Douglas Williams), admission of evidence said
to be
obtained from unlawful "searches", and inadmissible production of a photographic
booklet (the "Links" booklet"). |
Allegations of
improper conduct by police and prosecutor
| [65] | This
was strenuously advanced at trial, and also before us, by counsel for, in
particular, Ross Williams and Douglas Williams. There
were allegations of
planting of evidence, perjury, and corrupt manufacturing of evidence by the
police. |
| [66] | Allegations against the
prosecutor became more muted as the appeal proceeded but challenges were made to
his actions, and the fairness
of the trial. It was said that he had
communications and a friendship with defence counsel for Darryl Abraham, and
improperly communicated
with a police witness after his evidence in chief and
cross-examination had been completed, but before
re-examination. |
| [67] | The allegations of
improper conduct by the police were serious. They ought not be lightly made,
which counsel acknowledge. They
submit that there was a basis for such
submissions. The jury were directed by the Judge to bear that in mind when
assessing the
credibility and weight to be given to the police officers’
evidence. In many respects the defence was fortunate that that
direction was
given. On our assessment of all the evidence, we cannot see any basis for such
allegations. They are simply baseless
claims made in an attempt by appellants
to explain away damning evidence, or the implications of certain exhibits. No
evidence was
adduced, or elicited before the jury, to provide any foundation for
the allegations. |
| [68] | Exhibits in any trial are
silent witnesses. They can be incriminatory by their very existence, or
presence at particular scenes,
or link to an accused and to a crime. In this
case some exhibits strongly implicated some appellants. Obviously, the heater
box
(and heater according to the Crown) by the clearing site had grave
implications for Ross Williams. So, too, although perhaps to
a lesser extent,
did the evidence to link the bolt cutters and a partial cut in a wire found at
the scene. The presence of the distinctive
blue disposal gloves at the scene,
in Douglas Williams’ garage and at Ross Williams’ property,
might be seen to be particularly
damning. Observations of Ross Williams and
Darryl Abraham on a quad bike on the Western Ridge by the police officers, alone
were
not particularly damning, but the defence case was that those observations
could not physically have been made. Accordingly, the
defence said that the two
police officers committed perjury in saying that they saw what they did. So,
the position was reached,
according to defence, that all this amounted to police
corruptly manufacturing evidence and to perjury. The simple fact is that
these
allegations are made in an attempt to explain away evidence when no evidence
(apart from some relating to bolt cutters) was
called by the defence, or exists
from the prosecution case, to provide any other logical explanation than that
which the Crown sought
to advance. Of course, the defence does not have to give
evidence but claims of police corruption and planting of evidence, to be
made
responsibly, require some evidential foundation and none existed. The jury
would have been alive to the allegations or defence
contentions and clearly
rejected them. The ground as advanced in respect of each of the three
appellants is without substance and
fails. |
The
prosecutor speaking with a police witness before re-examination
| [69] | In
the course of Detective Sergeant Hamilton giving evidence during the fifth week
of the trial he was concerned about matters raised
in cross-examination by
counsel for Ross Williams, which carried the implication that persons
responsible for an unrelated cannabis
plot may also have been responsible for
the five plots the subject of this trial. The witness had referred to the
significant difference
between the areas but believed that the point would be
more easily explained or seen by pointing out locations on a video of the
area
taken from a helicopter, which tape in fact had been produced in his evidence in
chief. So, after re-examination, he mentioned
that matter to the Crown
prosecutor because if such was to be the subject of re-examination the next day,
the video would need to
be cued and prepared.
|
| [70] | After the Detective Sergeant had given
his evidence and been re-examined (which essentially involved him playing the
video to illustrate
or clarify his position) all counsel applied to the Judge
for a mistrial. She conducted a voir dire and gave a Ruling (No. 32) in
which
she declined the application. The Judge proceeded on the basis that there may
have been a breach of R8.05 of the Law Society
Rules of Professional Conduct,
although we are not at all certain that that was necessarily the case.
Nevertheless she concluded
that no miscarriage of justice did or could occur,
the contact was extremely brief, the Court had heard evidence as to exactly what
any discussion consisted of, and she
concluded: |
I do not think that a trial should be aborted when a witness volunteers
observations as to the course of his or her evidence to counsel
which is
essentially what has happened in this case.
She took the view
that a miscarriage of justice could not arise, nor could any perception of one
arise and dismissed the applications.
| [71] | The Rule itself does not
prohibit in its terms, contact after cross-examination and before
re-examination. It purports to prohibit
contact during the giving of evidence.
Its aim is obviously to prevent coaching or schooling. If, as here, a witness
simply volunteers
information to counsel that he would like to present in
re-examination to clarify what he has said, particularly where that which
is to
be presented is a videotape or perhaps by referral to some other documentary
exhibit, it would rarely be the case that such
actions were improper.
Naturally, counsel must take special care if there is any communication with a
witness. But it does not
follow that if there is communication such as occurred
in this case, it is a breach of a Rule and, in any event, sufficient to abort
a
trial. Criminal trials are not dictated by Law Society ethical rules, but by
rulings by the trial Judge. These may be on many
matters as they arise, with
the Judge having the obligation to ensure the trial is fair and properly
conducted. |
| [72] | It is not possible to say
that the Judge erred in her decision not to abort the trial. Indeed she could
have been criticised for
doing so after five weeks on such an insignificant
ground as that put forward by defence counsel. The Judge was scrupulously fair
to the defence when summing up to the jury by referring to the matter and
explaining to the jury that a rule had been broken (even
though perhaps that was
not the case) and that that was a matter they could take into account in
assessing the credibility of the
particular
witness. |
| [73] | The Judge properly handled the
matter and her discretionary decision was entirely proper and one with which we
agree. There is no
substance to this appeal
point. |
Prosecutor’s connection with defence
counsel
| [74] | Mr
King on behalf of Darryl Abraham submitted that a friendly relationship between
a Crown prosecutor and trial counsel for his client
gave the "appearance of
injustice" because of a conflict that this appellant perceived. The factual
basis for this perception is
said to be that the Crown prosecutor and trial
counsel had been friends for some time and shared an interest in a boat.
Although
the appellant contended that there had been improper communication, out
of Court and during an evening adjournment, between Crown
prosecutor and his
counsel this is absolutely denied by both counsel in their affidavit evidence.
|
| [75] | Mr King relied upon the dicta in R v
Szabo [2000] QCA 194 where it was said that non-disclosure of a relationship
between prosecutor and defence counsel was such that it could engender
reasonable
suspicion or apprehension in a fair-minded informed observer as to
whether defence counsel acted with fearless independence. But
the crucial point
is the nature of the relationship. The issue always comes back to whether there
is a reasonable suspicion that
justice may have miscarried.
|
| [76] | Counsel in New Zealand are well
accustomed to the steadfast advancement of their clients’ interest even if
they may be personally
friendly with their opponent and it would be rare that
friendship between lawyers was such as to lead to the conclusion that counsel
had failed in their duty to their client or that there had been a miscarriage of
justice. |
| [77] | In this case there is absolutely
no basis for such an impression to be gained, objectively, by a fair-minded
observer. If friendship
between lawyers, or those who are at the Bar,
practising in criminal or civil areas, disqualified representation of opposing
interests,
it would make the practice of the legal profession in New Zealand
impossible. The very nature of advocacy may tend to lead barristers
to
gravitate socially, and in friendly ways, towards each other. Mere friendship
between counsel without more could never be said
to jeopardise the proper
functioning of trials or the interests of clients. This allegation is, in the
context of this case, far-fetched
and
fails. |
Admission of evidence obtained from
searches
| [78] | Three
search warrants were issued. These were on 18 March 2002 authorising search of
properties occupied by Ross and Douglas Williams;
on 26 March, after
apprehension of Darryl Williams and Hayden Abraham, for any premises or places
at Kereta and occupied by Ross
Williams and Douglas Williams. A further warrant
was issued on 4 September 2002 for the properties occupied by Ross and Douglas
Williams. |
| [79] | Challenge was taken to the
admissibility of evidence obtained by such warrants and the Judge conducted a
voir dire and delivered a
reserved judgment on 30 September 2004. Pursuant to
the first warrant police officers went to their observation point to observe
activity on Ross Williams’ property. At that time they did not know that
that point was in fact outside the Williams’
property. The owner of that
land subsequently authorised the police use of his land. They took photographs
of the house and a stationary
camera hidden near the tracks also recorded
certain movements. |
| [80] | The argument on
behalf of the appellants is that the observations were unlawful because the
warrant only authorised search and seizure,
and not observations or the taking
of images. |
| [81] | We accept the arguments of
the Crown that no warrant was needed for the police to enter the
neighbour’s property. Even if consent
was retrospective, there is no
standing on the part of the appellants to complain of trespass in respect of the
neighbour’s
property especially as they themselves were trespassing onto
adjacent land in order to tend the cannabis plots.
|
| [82] | Furthermore, none of the appellants,
apart from Ross Williams, have any standing to complain about the search warrant
or search, if
such be it, in respect of Ross Williams’ land. The others
had no privacy interests protected by s 21 of the NZBORA; see R v
Savelio CA234/96 5 August 1996. |
| [83] | In
respect of Ross Williams we are of the view that there was no unreasonable
search of his property by police surveillance and observations.
They were made
from some distance observing farmlands in an area surrounding the homestead and
tracks in the hills and bush on an
adjacent area to the property. It did not
involve intrusion into privacy of a dwelling through invasive surveillance
methods. It
did not involve interception of conversations or anything of that
nature. |
| [84] | The problem of whether
surveillance, video or otherwise, constituted a "search" was discussed by the
Full Court of this Court in R v Fraser [1997] 2 NZLR 442 at 449-452 (CA)
which left the question unanswered. The Court
said: |
Observations from remote positions involving no entry on property or premises,
whether technologically enhanced or not, present particularly
difficult issues
and we prefer to have the advantage of considering the factual circumstances of
more cases before attempting any
definitive identification of the elements of
search and seizure. (at
452).
| [85] | In the
circumstances of this case, police observations and photographs of the land,
tracks, and area outside the homestead of activity
by all five appellants was
not an unreasonable search. |
| [86] | Mr Tennet
submitted the warrant issued on 22 March was to permit surveillance "on the
property of Ross Williams" but this had not
occurred and therefore he said the
actions were unlawful. This submission is without merit. Wherever the
surveillance occurred,
it was justified by warrant. Mr Tennet also submitted
that there was a trespass on the property of Ross Williams because the police
had to cross it so as to reach the point of observation. There is nothing to
this point. They were authorised to enter the property.
Intricacies as to
where actual boundaries later came to be known do not assist the
appellants. |
| [87] | There is no substance to the
contention by counsel that the warrant did not authorise more than one entry
onto the property because
in its terms it confirms that multiple entries within
one month are authorised. Further argument was presented that the officers
applying for the warrant did not depose to a reasonable belief that an offence
had been committed. We share the conclusions of the
Judge that the information
contained in the application was sufficient for a warrant to be issued. It sets
out facts and information
known to the police and it is clear that the belief
was being expressed that the offence of growing cannabis was suspected on DOC
land adjoining the property of Ross Williams, and the issuing officer had
reasonable and sufficient grounds or belief to justify
the issue of the warrant.
The Judge’s conclusion that the warrant was valid and lawful was
correct. |
| [88] | As to the warrant of 26 March and
4 September 2002, it was argued that this should have specified the exact
address of Douglas Williams.
The application and the warrant covered any
premises or places at Kereta occupied by Ross Williams and
Douglas Williams. The house
occupied by Douglas Williams was about 800
metres away on adjoining property and it was leased from Ross Williams.
There was no
risk of confusion. As the Judge observed, the police knew there
were two distinct houses occupied by Ross and Douglas Williams.
The warrant
application sought entry into those properties. In the circumstances where Ross
Williams owned property in which he
lived and leased an adjoining property where
his son lived, the application and the search warrant clearly incorporated
search of
the home of Douglas Williams. Indeed the leasing arrangement was
mentioned in the application. The Judge was correct to reject
this challenge to
the warrant in respect of Douglas Williams’
residence. |
| [89] | Challenge was made in general
terms to the sufficiency of material contained in the applications for warrants
of 18 and 26 March.
The Judge had the benefit not only of the edited version of
the application but, unlike defence counsel, also the unedited version.
It is
clear that there was more than sufficient basis upon which the warrant should
issue. There was informants’ information
contained in the warrant
application of 18 March and, by 26 March, evidence of the white van with the
three men, later arrested and
charged with possession of cannabis which was in
the two large black rubbish sacks, was available. There is no basis for a
challenge
to the conclusions of the District Court Judge that the
information was sufficient to justify the issue of the warrants.
|
| [90] | The evidence obtained was not tainted by
unreasonable or unlawful searches. |
Production of
the "Links" photographic booklet
| [91] | The
police produced a photograph booklet Exhibit A comprising 91 pages containing
many photographs. Some of those were reproduced
in Exhibit B which came to be
known as the "Links" booklet. They are simply reproductions of a number of
photographs with captions
beneath them, some with linking arrows showing the
connections, or possible connections between various photographs. For example,
a photograph of Ross Williams’ garage with a connecting arrow to blue
gloves located at that garage is shown beside a photograph
of Douglas
Williams’ garage with a linking arrow to a blue glove found in that
garage. |
| [92] | Counsel have contended that the
"Links" booklet contains inadmissible commentary and submissions and ought not
have been provided
to the jury. That argument was also presented to the Judge
and dealt with in her Ruling (No. 1). |
| [93] | Mr
King submitted that the prejudicial value of the "Links" photograph booklet
outweighed its probative value. We do not accept that
submission. It is simply
the presentation of photographs, with explanatory captions and there was
effective cross-examination by
defence counsel in respect of it where errors in
labelling were pointed out. |
| [94] | Whilst there
was no specific direction by the Judge on that booklet in this case (and it
would have been preferable if there had been)
that did not give rise to a
miscarriage of justice. |
| [95] | Provided evidence
is given as to the location of items, and there is an evidential basis or
narrative for the descriptions or arrows
in the "Links" booklet there could be
no objection to this being produced to the jury. It is in the form of a
pictorial chart, which
the Crown may tender to assist the jury in considering
the evidence. Naturally, the evidence must itself provide a foundation for
the
matters contained in the chart. We are satisfied that the evidence given by the
Crown sufficiently established the identity
of items contained in the "Links"
booklet and how they are described. So, too, are the photographic contents
themselves and any
connection, whether being enlargements of smaller photograph
images or explanations as to where certain items were recovered or found,
are
dealt with in the evidence. There was no irregularity in the jury having the
assistance of the "Links" booklet and, whilst there
was no specific direction by
the Judge on the booklet, that did not give rise to a miscarriage of justice.
This ground fails. |
Inadequate representation and
insufficient time for preparation of counsel for Ross Alexander Williams
| [96] | On
behalf of Ross Williams it was submitted a miscarriage of justice occurred due
to late withdrawal of previous counsel. That withdrawal
eventually occurred on
21 September 2004. Mr O’Sullivan was then instructed and sought an
adjournment of the trial. It was
agreed that the trial could proceed, despite
the jury being empanelled on 1 October 2004, on 11 October 2004.
|
| [97] | Extensive and voluminous
cross-examination by appellant’s trial counsel displayed a vigorous
effort, and we think, a familiarity
with all relevant matters that emerged
during trial. He had received his instructions at least by 21 September 2004
(some three
weeks before the trial commenced). Counsel had the benefit of
interviews, notes and information obtained by a private investigator
originally
instructed by Ross Williams and he also the benefit of a further private
investigator, both of whom met with him. The
issues involved in the case were
not particularly complex and there were multiple counsel sharing, in some
respects, what were common
defences – namely that police observations from
the surveillance site were wrong, mistaken or perjured, that certain items
of
evidence were equivocal and not capable of amounting to proof beyond reasonable
doubt, and "guilt by association" could not be
inferred. He had information as
to the worth or weight of the "heater box" evidence, and it is apparent he
instructed a surveyor,
who was able to give evidence but an election was made
not to do so. |
| [98] | It is always a difficult
exercise for a trial Judge to determine where the interests of justice lie where
an accused’s counsel
withdraws or his services are dispensed during or
close to trial. In this case trial counsel was instructed three weeks
before the
trial commenced and adjournments were granted to ensure no prejudice
followed. Counsel was content with this, and had the benefit
of preparation of
prior counsel, as well as those other counsel who had common interests. It was
a matter which, so far as it related
to Ross Williams, involved simply police
observations, circumstantial evidence relating to the white van coming to his
home on 26
March, and the presence of items located in his garage at his home
which it was said linked him to the harvesting and drying
sites. |
| [99] | We have reviewed the
cross-examination of Crown witnesses by Ross Williams’ trial counsel.
It is clear that he was astute and
alive to the relevant issues. This was to
the extent of spending a considerable amount of time in the cross-examination of
Crown
witnesses and vigorously testing the Crown’s case. We cannot accept
that he, or his client, were disadvantaged by or in the
manner in which he
undertook his task. No affidavit evidence has been filed by him to suggest that
he was hampered in any way in
his preparation. There is nothing about the
representation of Ross Williams by his trial counsel that gives us any
cause for concern.
This ground fails. |
Counsel
error
| [100] | This
is a ground advanced by Mr King on behalf of Darryl James Abraham and Mr Hogan
on behalf of Ross Williams. |
| [101] | Mr King
argued that trial counsel for Darryl Abraham failed to comply with the
instructions of his client and call medical evidence
said to establish that that
appellant had undergone two hernia operations some weeks before 26 March
2002. Accordingly, he could
not have been able to walk into the cannabis
plantation or drying area so as to perform any vigorous task.
|
| [102] | Mr Hogan advanced an argument that trial
counsel failed to call evidence from a surveyor to assist the case of
Ross Williams. |
| [103] | Concerning the
allegation of failure to follow instructions, of Darryl Abraham, we
received an affidavit from his trial counsel, who
was vigorously cross-examined
before us. He said that initially he considered proposed medical evidence might
assist his client,
but disclosure from the police revealed that that would be of
no benefit. This was because the police sightings were generally of
Darryl
Abraham riding a farm quad bike, and not in fact walking to or from the cannabis
plots. More significantly, the appellant’s
explanation to the police for
his presence on 26 March 2002 at Ross Williams’ property, after the police
surveillance operation
ended, was that he went with Ross Williams about once a
week to go pig hunting and the last time on which he had undertaken that
exercise was 26 March 2002. Trial counsel was adamant that he was not given
instructions to adduce medical evidence, but rather
that it was discussed with
his client, who agreed that it ought not be called as it would not assist in his
case. We accept Mr Curtis’s
evidence. There is no substance to the
contention of failure to follow
instructions. |
| [104] | But, Mr King enlarged upon
this ground and contended that, in any event, apart from instructions, medical
evidence should have been
called by trial counsel. He says the failure to do so
was an error that might have led to a miscarriage of justice. The basis put
forward by Mr King for this proposition was that if the jury had had such
medical evidence of an earlier hernia operation on the
appellant, it might have
been able to conclude that he could not perform any strenuous work so as to
participate in the ongoing cultivation
operation. He says that the medical
evidence could have been used together with the appellant’s contention
that whilst he
had gone pig hunting from time to time, he had not done "very
much recently". Essentially, Mr King’s submission was that trial
counsel erred in the tactics and decisions made in the conduct of the trial by
failing to call such evidence. |
| [105] | In recent
times it has been a common ground in criminal appeals to this Court for persons
convicted of crimes to claim, when represented
by new counsel, that their trial
counsel was incompetent or failed to follow instructions and that therefore a
miscarriage of justice
occurred. Sometimes that ground succeeds, but in the
vast majority of cases the claim is made with no or little foundation.
|
| [106] | The ultimate issue in terms of s 385
Crimes Act 1961 is whether a miscarriage of justice may have arisen or occurred,
however that
came about. The view that counsel error had to be "radical" before
a guilty verdict could be set aside on the grounds of counsel
error did not
properly reflect what this Court said in R v Pointon [1985] 1 NZLR
109 (CA) and R v Horsfall [1981] 1 NZLR 116 (CA). This was reconfirmed
by the Supreme Court in Sungsuwan v R [2005] NZSC 57; (2005) 21 CRNZ 977.
|
| [107] | The focus is on the outcome of the
trial. If there is a likelihood of a miscarriage of justice then of course that
is serious enough
to set aside the verdict. If counsel’s conduct was
reasonable, a client will not generally succeed in asserting miscarriage
of
justice so as to obtain a new trial except in the rare case that would arise
where conduct of counsel although reasonable, nevertheless
could be shown to
have given rise to an irregularity which prejudiced an accused’s chance of
acquittal or conviction on a lesser
offence to the extent that an appeal Court
is satisfied there was a miscarriage of justice. Matters of judgment and trial
tactics
will rarely give rise to such a situation. Detailed discussion is not
required, other than to refer to the passage of Gault J, in
Sungsuwan v R
(above), in delivering the reasons of himself, Keith and Blanchard
JJ: |
[70] In summary, while the ultimate question is whether justice has miscarried,
consideration of whether there was in fact an error
or irregularity on the part
of counsel, and whether there is a real risk it affected the outcome, generally
will be an appropriate
approach. If the matter could not have affected the
outcome any further scrutiny of counsel’s conduct will be unnecessary.
But whatever approach is taken, it must remain open for an appellate court to
ensure justice where there is real concern for the
safety of a verdict as a
result of the conduct of counsel even though, in the circumstances at the time,
the conduct may have met
the objectively reasonable standard of competence. (at
[70]).
| [108] | The
short point is that if the risk of a miscarriage of justice exists then however
that came about, whether through error by way
of miscalculation or complete
incompetence (radical or not) does not really matter.
|
| [109] | However, care must always be taken to
distinguish between decisions by counsel agreed to by the client, as well as
matters of strategy,
tactics and discretion which are reasonably open for a
trial counsel to make, and which could not be said to lead to any miscarriage
of
justice. "Second guessing" on matters such as that are easy to make, and are
too commonly made, but rarely sustainable, unless
the end result displays a real
risk of a miscarriage of justice. It will only be in rare cases that conduct of
counsel, although
reasonable in the circumstances in which it occurred, can
nevertheless be shown to have led to an irregularity that satisfies a Court
a
miscarriage of justice occurred. When criticising trial tactics, appellate
counsel ought to keep in mind what was said in Sungsuwan v R
(above): |
There will be cases in which particular acts or omissions of counsel may in
retrospect been to have possibly affected the outcome
but they were deliberately
judged at the time to be in the interests of the accused. In some cases the
accused will have agreed
or acquiesced – only to complain after
conviction. Where the conduct was reasonable in the circumstances the client
will not
generally succeed in asserting miscarriage of justice so as to gain the
chance of defending on a different basis on a new trial.
Normally an appeal
would not be allowed simply because of a judgment made by trial counsel which
could well be made by another competent
counsel in the course of a new trial.
(at [66]).
| [110] | In
the present case, the decision not to call medical evidence by trial counsel,
acceded to by his client, could not possibly be said
to be counsel error. Nor
could it be said to be a decision which may have affected the outcome of the
trial. If such evidence had
been called it was equally capable of leading the
jury to reach the view that the appellant Darryl Abraham lied to the police when
he gave as his explanation for being at the property on 26 March, that he was
pig hunting. Mr King says that it might have led the
jury to conclude that he
was telling the truth when he said that he had done this but not so much in
recent times. That is an intricate
and implausible argument. How the jury
might have viewed such evidence is pure speculation, but the risks involved in
calling the
medical evidence at least equalled, if not outweighed, any possible
benefit that might be obtained from doing so. After all, it
was not the Crown
case that Darryl Abraham was a labourer – rather it was that he was
transporting others on quad bikes to
the scene, and was present when cannabis
was transferred to the white van, with his red utility vehicle being seen to be
at the property
on the evening of 22 March early in the morning of 25 March
and again on the morning of 26 March 2002.
|
| [111] | The manner of presentation by trial
counsel for Darryl Abraham was in accordance with what his client wanted and
agreed to. The effect
and value of medical evidence would not have assisted the
defence in any event. The decision not to call the evidence was a reasonable
and indeed desirable approach to adopt as a matter of trial strategy and could
not possibly have led to any risk of miscarriage of
justice. The hindsight
sought to be presented on this appeal is not a virtue, but a folly. Mr King
expressed his opinion that calling
the evidence would have involved minimal risk
to the accused. We are not sure upon what basis he advanced this opinion, but
we do
not share his optimism. The risk as assessed by Mr Curtis and the accused
was obvious (he would be seen to have lied to the police),
and there was no
error, minor or gross, in the decision that was
made. |
| [112] | The allegation of counsel
incompetence leading to a risk of miscarriage of justice is a futile claim.
This ground fails. |
Counsel error on the part of
trial counsel for Ross Williams
| [113] | Apart
from contending that Ross Williams was disadvantaged by late instructions of his
trial counsel, Mr Hogan also submitted that
there was incompetence or error on
the part of trial counsel in the manner in which he conducted or prepared the
defence. Essentially,
Mr Hogan submitted that trial counsel should have
obtained and called evidence of a surveyor to present evidence along the lines
that he sought leave to adduce on this appeal. He says that this would have
established the error, mistake or deliberate perjury
of the observing police
officers. That ground must fail for the following reasons.
|
| [114] | Evidence before us establishes that a
Thames’ surveyor had been at Ross Williams’ property doing
subdivision work and
he had been recommended by a private investigator (engaged
by the defence) as a source from which to obtain expert surveying evidence.
We
are told that that was done. The surveyor was available to give evidence, but
was not called. Whatever his opinion was, it
could not provide any assistance
or benefit to the appellant. It is in the realms of speculation to conclude
what such evidence
may have been, or may have been able to show. We are not
able to do this. There is no suggestion that it could have assisted the
appellant so that without it being adduced, a miscarriage of justice may have
followed. |
| [115] | A challenge to the reliability
of the officers’ observations was squarely before the jury. So much so
that a view took place
so that the jury was able to make up their own minds as
to whether the Crown witnesses could see what was claimed to be the case
from a
particular point. It was no different to the situation in
Karamat v The Queen [1956] AC 256 (PC) where in delivering the
advice of the Privy Council, Lord Goddard observed there would be no
objection to a witness attending
a view and giving demonstrations on the grounds
that he had already given evidence because that might be the very reason that
made
the view valuable. An example was given of a police constable who might
say in evidence that he had kept watch on a certain place
and seen and observed
incidents from that place. When challenged on grounds that he could not
possibly have seen or heard what he
said he had, Lord Goddard made the
obvious remark that it might be of the utmost value then to let a jury see the
place with the
witness in the position to which he had spoken. In this case,
after the view, the surveillance officers were recalled to give further
evidence
to establish the accuracy of the observation positions that they had
adopted. |
| [116] | Apart from this contention by Mr
Hogan that surveyor’s evidence should have been called, there is no other
challenge to the
manner in which Mr O’Sullivan conducted the defence for
Ross Williams. It is apparent that he obtained such expert advice
from a
surveyor engaged by or known to his client, and there is no suggestion in the
evidence that that opinion, if given at the
time of trial, would have provided
material assistance to the defence. |
Opinion
evidence by experts who give evidence as to fact
| [117] | Both
Mr King and Mr Tennet submitted that a miscarriage arose because of evidence
given by police officers, qualified as experts to
give evidence on some matters,
who were also witnesses as to fact. The jury had, it is said, "judicial
approbation" in the form
of the standard direction as to expert evidence.
Counsel submitted that the jury could not, in those circumstances, have been
able
to assess the credibility of the witness on matters of fact.
|
| [118] | There were two police officers,
Detective Senior Sergeant Whitehead and Detective Sergeant Hamilton who
gave evidence as to matters
of fact, that is, what they found, saw and observed.
Mr Tennet says that Detective Senior Sergeant Whitehead was permitted to
qualify
himself as an expert about wire cutting and Detective Sergeant Hamilton
as to cannabis cultivation and drug sales, and therefore
should not have been
called as police witnesses as to fact. We do not see why
not. |
| [119] | It is frequently the case that a
witness deposes as to a fact, and then may express an opinion in areas in which
he or she is qualified
as an expert about some matters. No general rule can be
laid down. But if what counsel says is correct then expert police officers
would be restricted in their participation as investigators of fact in relation
to alleged crimes, and conversely officers involved
in factual investigations
would be incapable of giving expert evidence within areas of their expertise.
That cannot be the position.
Provided that opinion evidence is described
exactly as that, and it follows upon a proper qualification by the witness of
the expertise
necessary to express such an opinion, there can be no objection to
what occurred. That a witness also gives evidence as to a fact,
in other
respects, is beside the point. Of course, the Judge should direct the jury on
how to use opinion evidence, and this she
did.
|
| [120] | The trial Judge went further to describe
some witnesses as being experts in giving opinions, but also to being witnesses
as to fact,
and she emphasised the two distinct roles that they played. She
emphasised that the expert opinion evidence was to be assessed only
in respect
of the areas of the witness’s expertise, but they as the jury were the
finders of fact. Her caution about expert
evidence and how to use it, rather
than enhancing the credibility of witnesses, simply put into proper context the
care the jury
was required to take in accepting opinion evidence by experts.
There is no substance to this ground of
appeal. |
Scene visit
| [121] | Mr
King presented as a ground of appeal in support of Darryl James Abraham, that
the trial Judge unnecessarily restricted the scene
visit. He said the Judge
should have permitted the jury to see other areas that defence counsel had
nominated. He said that the
Judge restricted the view to observation of the
point on the Western Ridge from which the police officers had said they had
made
their observation of the Western Track. He contended that tracks on the
property and around the perimeter should have been available
for the jury to
view and inspect so as to demonstrate the number of access points onto the
property. |
| [122] | There is no merit in this
submission. It is but another attempt to "retry" the case. The conduct of a
view is a matter for the discretion
of a trial Judge, who must determine first,
whether a view is appropriate, and secondly, if so, what it should entail.
Essential
questions are the reason for the view and what it is intended to
achieve. |
| [123] | In the present case, the purpose
of the view was to provide the jury with an opportunity to observe and assess
the view, challenged
by the defence, as to the accuracy or otherwise of the
police officers’ evidence as to whether they could see what they contended
they saw from their observation points. The purpose was not to enable the jury
to be moved far and wide around the property, tracks,
and the surrounding area
so as to in effect become far ranging investigators. The Judge was perfectly
entitled to confine the view
in the way that occurred. This ground of appeal
fails. |
Use of transcript
| [124] | Mr
Tennet, on behalf of Douglas Ronald Williams submitted that the Judge erred in
allowing the jury to have the transcript of evidence
without a "suitable
direction". He contended that the jury should have been told by the Judge that
if they required assistance on
any matters of evidence then they were to ask her
first so that she would have been able to point out to them those passages in
the
transcript, both evidence in chief and cross-examination, which were
relevant. |
| [125] | This was a long trial with
hundreds of pages of evidence. The jury was entitled, in the Judge’s
discretion, to have the transcript
to assist them. They could refer to it if
they thought necessary. A Judge is not required to direct them to come back
with questions
relating to portions of the transcript to which their minds might
be directed. Counsel may, in their addresses, wish to emphasise
certain
passages. But a jury is to be regarded as having collective common sense to be
able to ascertain and read passages, which
they might regard as relevant. In
her summing-up the Judge gave to the jury the conventional and proper directions
as to the use
to which the transcript might be put by them and also about the
jury asking questions. Of course, a jury may direct a question to
the Judge on
matters relating to the evidence but they are not bound to do so. Nor is a
Judge bound to tell them that they should
ask questions about the relevance of
certain passages which may be present in the transcript that they already had.
This ground
of appeal has no merit. |
Misdirections
on summing-up
| [126] | Mr
Hogan, Mr Tennet and Mr King all submitted that the Judge dealt with each of the
appellants unfairly in her summing-up. Essentially,
they said that the Judge
failed to accurately or properly put the defence case. There is also a
challenge to her direction as to
the law on parties, Mr King contending that it
was in "too general" terms. |
| [127] | Both
Mr Hogan and Mr Tennet argued that the Judge failed to directly put to the
jury the contentions that there had been police corruption
and planting of
evidence, as well as perjury, in relation (so far as it related to Ross
Williams), the heater box at the drying site,
bolt cutters in his garage, and
the claimed visibility issue arising from the surveillance evidence.
|
| [128] | Mr Tennet contended the Judge failed to
squarely put the defence that the police had been corrupt, and in relation to
his client giving
evidence as to items of evidence incriminating Douglas
Williams. |
| [129] | The jury could scarcely have
been unaware of defence contentions given the vigour and length of their closing
addresses. |
| [130] | We have reviewed the lengthy
and detailed summing-up of the trial Judge, and are satisfied there is no
substance to these submissions.
The arguments are simply recitations of the
submissions made to the jury. The Judge carefully outlined each of the
propositions
and arguments put on behalf of the appellants so that the jury
fairly was aware of the respective defence positions. She was not
required to
describe them in the same colourful, dramatic, and sometimes extravagant terms
that counsel had used in addresses. She
was careful and thorough in her
directions as to parties. The jury could have been left in no doubt at all as
to what the Crown
alleged to be the case in respect of all appellants, namely
that each were participating in a joint enterprise, with different roles
or
tasks being undertaken by different participants but all assisting one another.
|
| [131] | Mr King submitted the Judge failed
to put to the jury what he said was a "global defence", namely that, apart from
other matters,
the visit by the white van and its occupants on 26 March 2002 was
"social only". He said there were many aspects of the Crown case
to which "a
combined defence" has been presented which the Judge did not adequately put.
His reference to a "global defence" simply
encompasses the contentions or
submissions or propositions put by individual accused, which happen to be the
same. That the Judge
was able to deal with them individually, as we are
satisfied she adequately did, effectively means that they were properly put
before
the jury. Whether they apply to every accused or not so as to be called
"global" is not the point. The jury were fully appraised
of the defences.
There is nothing in this ground. It seeks to re-argue that which was left,
properly, by the trial Judge, to the
jury. It is
dismissed. |
Crown prosecutor’s
actions
| [132] | Mr
Tennet submitted that the Crown prosecutor misconducted himself through his
objections or interjections during the cross-examination
by Mr Tennet. He says
those interjections were unseemly and inconsistent with his duty and led to an
unfair trial. |
| [133] | There is no foundation
for this submission. Any objections made by Crown counsel, as the record shows,
were properly made and arose
through the actions of defence counsel. In the
conduct of any trial counsel cannot expect to put improper or impermissible
questions
and not have objection made by opposing counsel (or perhaps the Judge
intervening). None of the objections in this case by the Crown
prosecutor were
excessive or unwarranted in the circumstances. This ground
fails. |
The verdicts were unsafe through
insufficient evidence
| [134] | This
is a general ground advanced by counsel for Darryl Abraham and
Douglas Williams. Counsel for Ross Williams does not pursue this
ground.
|
| [135] | Mr King and Mr Tennet rely upon a
detailed analysis and criticism of many aspects of the circumstantial, as well
as direct, evidence.
Mr King put it on the basis that there was an insufficient
admissible evidential basis before the Court for the jury to find his
client
guilty. He says the test that the verdict should be set aside on the ground
that it was unreasonable and could not be supported,
was met. He referred to
R v Ramage [1985] 1 NZLR 392
(CA): |
if the Court is of the opinion that a jury acting reasonably must have
entertained a reasonable doubt as to the guilt of the applicant.
It is not
enough that this Court might simply disagree with the verdict of the jury.
(at 393).
| [136] | Mr
King argued that the best that could be said about the evidence as it related to
Darryl Abraham was "guilt by association", and
that other items of
circumstantial evidence that implicated him had plausible explanations. He says
that there is a quite "overwhelming
suggestion" that the jury would have used
admissible statements of co-accused against his client during the course of
deliberations. |
| [137] | For his part, Mr Tennet
submitted that there is no evidence that Douglas Williams actively
participated in any active cultivation
and the evidence as to selling could only
be said (at best) to raise "suspicions", but did not prove selling, beyond
reasonable doubt,
in respect of both counts of
selling. |
| [138] | All matters advanced by counsel
under this heading were the subject of applications under s 347 Crimes Act 1961
at the conclusion
of the Crown case. The Judge discharged the appellants in
respect of some counts. She reviewed in summary form the evidence in
respect of
all appellants and came to the view that there was sufficient evidence to
support the Crown contention that all appellants
were in a joint operation
harvesting for commercial purposes, the object being one of sale.
|
| [139] | We have set out at [51] – [61]
much of the circumstantial and direct evidence which implicated Douglas Williams
and Darryl Abraham.
In summary Douglas Williams was seen with his father on the
Western Track near the drying area; he was seen to be carrying a black
plastic
sack with Darryl Abraham near that area on 26 March; a number of gas bottles
were refilled using his bank card, glove and
twine were found in his garage to
match those found at the plots and the drying area; cannabis remnants were in a
jacket at his
garage; a note purporting to be a roster for tending the drying
area was found. Darryl Abraham was seen on two occasions transporting
the two
young men on quad bikes near the plots and returning to Ross Williams’
home. A black polythene bag with Douglas Williams’
prints on it were
found in his wheelie bin, the latter having been seen to be carrying a black
plastic bag on the Western Track on
26 March; cannabis leaf remnants were
found in his garage and he was observed on the Western Track at 10.27am on
26 March accompanied
by Douglas Williams near the drying area; he was
seen in the company of the occupants of the white van at 11.30am at a time when
the black plastic bag was placed in the van. In addition, there is a wealth of
other evidence directly implicating other appellants
but which, if a jury
concluded that this was a joint enterprise involving all appellants, could have
enabled it to reasonably conclude
that these two appellants were parties.
Simply by way of example, a blue plastic glove found at Ross Williams’
property, being
evidence against him, might provide some inculpatory link with
Douglas Williams who had a similar glove – both linked to gloves
found at
the scene. It could not possibly be the case, as Mr King submits, that the
jury, if it acted reasonably, must have entertained
a reasonable doubt as to the
guilt of either of these two
appellants. |
| [140] | Whether verdicts are
unreasonable and cannot be supported having regard to the evidence are not
questions that lend themselves to
any extensive or elaborate reasons. The Judge
cannot be said to have erred in rejecting the s 347 Applications. There was
ample
evidence open to the jury to find beyond reasonable doubt that both
Douglas Williams and Darryl Abraham were parties to the joint
enterprise and
integral participants in it. This ground
fails. |
Appeals against sentence
| [141] | The
appeals by Darryl Abraham, Douglas Williams, Darryl Stuart Williams and Hayden
Stuart Abraham are on the grounds that sentences
imposed upon each, was
manifestly excessive. It was contended that insufficient distinction was made
between them and Ross Williams
and, in respect of Darryl Williams and
Hayden Abraham, between them and the other three appellants. Essentially,
counsel contend
that their clients were lesser players in the cultivation and
harvesting of cannabis, and their sentences could not stand when viewed
against
the sentences of three years’ nine months’ imprisonment for
Ross Williams and Darryl Abraham and three years’
six months’
imprisonment for Douglas Williams, said to be the principal
offenders. |
| [142] | Ross
Williams does not appeal against his sentence, not surprisingly given that the
actual sentence of three years and nine months’
imprisonment might well be
regarded as lenient in this case. |
| [143] | The
other four accused contend their sentences are manifestly excessive, when viewed
as against that of Ross Williams.
|
| [144] | Beyond doubt this offending involved
large-scale commercial growing and selling coming within category three of R
v Terewi [1999] 3 NZLR 62; R v Terewi and Hutchings [1999] NZCA 92; (1999)
16 CRNZ 429 (CA). The starting point is generally at least
four years. The Judge in this case took it at four and a half years but
distinguished
the end sentences for Darryl Williams and Hayden Abraham.
Their role could be described as "lesser" based upon the statements they
made
and comments overheard by police whilst the two young men were tending the
cannabis plot. The Judge did not distinguish the
two more mature appellants,
that is Ross Williams and Darryl Abraham, but endeavoured to make some
distinction between them and Douglas
Williams’ because of his age (about
21). He was sentenced to three years six months’ imprisonment, and three
years three
months’ imprisonment was imposed upon Darryl Williams and
Hayden Abraham. |
| [145] | This was a large-scale
commercial operation involving not just cultivation but two counts of selling
cannabis. The only basis upon
which any of the appellants can realistically
argue that their sentences are inappropriate is if they are "too close" to that
imposed
upon Ross Williams. That he may be the fortunate beneficiary of a
lenient sentence is in our view obvious. But in the circumstances
of this case,
that does not entitle the other appellants to similar leniency. In terms of the
general guidelines for offending at
this level, the starting point adopted by
the Judge is well within the permissible range. A potential return in excess of
$600,000
existed, and deterrence is an important consideration for such serious
cases. Personal circumstances take lesser significance for
serious offending as
this. |
| [146] | The Judge carefully analysed the
roles of each offender in endeavouring to make some sensible distinction to
recognise differences,
and whilst she may have set the higher sentence at too
low a level, no obvious injustice can be seen to arise from the other lesser
sentences, which are entirely appropriate in themselves. It may be that another
Judge could have imposed sentences to reflect a
greater disparity between the
highest and lowest sentences. Nevertheless, given that the trial Judge had by
far the best opportunity
of assessing the culpability of those convicted, we
conclude that the sentences imposed on Darryl Williams and Hayden Abraham were
not manifestly excessive. Likewise, the sentences imposed on the other
appellants with whom we are concerned were not manifestly
excessive, nor
inappropriate. |
Conclusion
| [147] | For
the foregoing reasons each of the appeals against conviction and sentence are
dismissed. |
Solicitors:
Crown Law Office, Wellington
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