R v McLean CA227/05 [2005] NZCA 391 (17 November 2005)

Last Updated: 21 January 2014

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA227/05

THE QUEEN

v

LANCE DAVID PAUL MCLEAN

Hearing: 14 November 2005

Court: O’Regan , Baragwanath and Doogue JJ Counsel: P V Paino for Appellant

M D Downs for Crown

Judgment: 17 November 2005 at 10am

_{JUDGMENT OF THE COURT}

A The appeal against conviction is upheld, the conviction set aside and a new trial ordered.

B Order prohibiting publication in news media or on internet or publicly accessible database until completion of trial. Publication in Law Report or Law Digest permitted.

REASONS

_{(Given by Doogue J)}

R V L D P MCLEAN CA CA227/05 17 November 2005

Introduction

[1] Lance David Paul McLean appeals against his conviction in the High Court at Wellington of conspiring with Shane Andrew Ellis to manufacture a class “A” controlled drug namely methamphetamine. The conviction followed a trial before Goddard J and a jury. Mr McLean was sentenced to three years’ imprisonment but there is no appeal against that sentence.

[2] The essence of the appeal is that a miscarriage of justice occurred as a result of a series of events relating to the ownership of a jacket.

[3] The appellant seeks leave to adduce evidence from himself and Mr Ellis. He has waived privilege in respect of his counsel at trial and there is also an affidavit by her before the Court. No issue has been taken to the application to adduce the additional evidence and leave to do so is granted.

[4] The Crown does, however, take issue with the appeal and says that even if there were errors in respect of the ownership of the jacket, which is disputed, they could not have given rise to any miscarriage of justice.

Background

[5] The convictions of the appellant and Mr Ellis were a result of the execution of a search warrant at Mr Ellis’s home on 29 July 2004. He and the appellant were found in the kitchen sitting at a table. A clandestine laboratory associated with the manufacture of methamphetamine was found in the basement. There was uncontested evidence at trial that articles in the basement were of a kind used to produce pseudoephedrine from legitimate pharmaceutical preparations by extraction and that some of the equipment at the premises had been used in the manufacture of methamphetamine by synthesis. Empty Robitussin bottles, which would have contained the precursor substance pseudoephedrine, and associated packaging were found in a rubbish bag in the basement. Nine bottles of the same substance, as well as associated packaging, were found in the appellant’s car parked outside Mr Ellis’s home. Receipts and bags in the car tended to prove that the appellant had purchased Robitussin from a number of pharmacies in different townships.

[6] A small quantity of methamphetamine was found on the appellant. His house was searched the same day. It contained equipment and material, including laboratory glassware, consistent with the potential manufacture of methamphetamine.

[7] Understandably the items found by the police led to a series of charges against both the appellant and Mr Ellis. The appellant entered pleas of guilty to charges of possessing methamphetamine and possessing a precursor substance, pseudoephedrine, with the intention it be used in the manufacture of a controlled drug. Mr Ellis pleaded guilty to possessing equipment and a precursor substance with the intention that such items be used in the manufacture of methamphetamine, permitting his premises to be used in the commission of an offence contrary to the Misuse of Drugs Act 1975 and conspiring with the appellant to make methamphetamine.

[8] The appellant pleaded not guilty to the charge of conspiring with Mr Ellis to manufacture methamphetamine and a further charge of knowingly permitting his motor vehicle to be used for the purpose the commission of an offence against the Misuse of Drugs Act 1975.

[9] Amongst the original charges, there was an additional charge against Mr Ellis flowing from a jacket being found on the back of the chair in the kitchen where the appellant was sitting when the two men were first seen by the police on the execution of the search warrant. In the top right hand pocket of that jacket there was a large quantity of Nurofen pills. In the top left pocket there was a silver card holder in which was a “point” bag containing methamphetamine. Also in the cardholder was a folded piece of paper and a small sealable plastic bag both containing a white powder substance. Mr Ellis advised the police that this powder was pseudoephedrine, which he had extracted using raw materials and equipment located in his basement. In a statement to the police Mr Ellis acknowledged the jacket was his. In a summary of facts prepared for the District Court the facts relating to the jacket were set out in relation to the charge against Mr Ellis.

[10] Prior to Mr Ellis pleading guilty to the substantive charges and being sentenced in respect of them, the police withdrew the charge against Mr Ellis relating to what was found within the jacket. This was well before the trial of the appellant.

[11] A month after Mr Ellis was sentenced an application by the appellant under s 347 of the Crimes Act 1961 in relation to the charges against him was heard in the High Court. It was not then part of the Crown case that the jacket was the appellant’s. In those circumstances the appellant’s trial counsel, not Mr Paino, understandably took the view that the police regarded the jacket as Mr Ellis’s.

[12] At the trial of the appellant the Crown changed its stance in relation to the ownership of the jacket and claimed in opening that it was the appellant’s jacket. Evidence was led from a Detective Herring as to the execution of the search warrant at Mr Ellis’s home. His only evidence-in-chief relating to the jacket was that it was hanging on the back of the chair on which the appellant was sitting at the table. The Crown did not seek to adduce from him any evidence as to whom the jacket belonged to. The detective also gave evidence of what he found in its pockets.

[13] The appellant’s trial counsel chose to cross-examine the detective about the jacket. She asked: (page 17, line 16)

Do you believe the denim jacket in fact belonged to Ellis and [not] McLean?

To which the detective replied:

I don’t believe it did, no.

[14] The appellant’s trial counsel then pursued the issue with the detective in relation to the charge against Mr Ellis. The detective said that what he was saying was that Mr Ellis was charged with possession of methamphetamine in relation to the jacket, but that charge was later withdrawn:

Because I did not believe that jacket to be his. (Foot of page 17, lines 36 and 37).

[15] The appellant’s trial counsel further pursued the matter and having had the detective repeat he did not believe the jacket to be Mr Ellis’s asked him:

Are you saying you don’t know whose jacket it is? (Top of page 18, line 1).

[16] The detective then said:

I’m saying I believe it to be the accused’s McLean’s.

[17] In re-examination the Crown prosecutor had the detective clarify that he had initially had Mr Ellis charged with possession of methamphetamine in reliance upon what was found within the jacket, but later withdrew that charge as he did not believe the jacket belonged to Mr Ellis.

[18] The appellant’s trial counsel also asked two brothers of Mr Ellis, called as witnesses by the Crown whether they knew whose jacket it was but they did not.

[19] This appellant did not give or call evidence.

[20] In summing up to the jury, Goddard J summarised the position as to Mr Ellis and the Crown case as follows:

[17] It is appropriate that I say something to you at this point about the situation of Mr Shane Ellis, and the opening statement made to you by Ms Gould (pursuant to s 369 Crimes Act 1961). Although the finding of a clandestine methamphetamine laboratory in the basement of Shane Ellis’ home does have relevance to the case against Mr McLean, the case against Mr Shane Ellis is nevertheless an entirely separate matter and not of itself relevant to Mr McLean’s guilt or innocence. By that I mean that simply because Mr Ellis was committing a crime does not make this accused guilty by association, and you must not find him guilty for that reason. It is, however, relevant that the two of them were friends; it is relevant, as I have said, that Mr Shane Ellis, a friend of the accused, was operating a clandestine methamphetamine laboratory; it is relevant that Mr McLean was in possession of a small quantity of methamphetamine contained in a point bag in his jeans pocket; it is relevant (if you find that it was his) that his jacket had a number of Nurofen pills and the items that were contained in the card case; it is relevant that his car had nine bottles of Robitussin and snap-lock bags in it (and Ms Gould has told you that he pleaded guilty to possession of that Robitussin as a precursor substance and to possession of the point bag of methamphetamine in his jeans pocket); and it is relevant that certain items associated with the manufacture of methamphetamine

were found at his home in Titahi Bay, three of those items bearing traces of methamphetamine. Those matters are all relevant circumstances, but the weight that you attach to each of those mattes, and the collective view that you take of them, is entirely for you. At the end of the day you must be satisfied beyond reasonable doubt that all of those circumstances, taken collectively do establish guilt as charged before you can convict.

[21] The Judge went on to deal with the drawing of inferences and circumstantial evidence. She summarised the Crown position as being that there were too many coincidences in the case to amount to a reasonable doubt that the evidence overwhelmingly pointed to guilt. She then went on to say:

[24] But, and this is the case for the defence, if the cumulative effect of the individual facts or circumstances does not reach that standard and still leaves gaps, then the evidence does not amount to proof beyond reasonable doubt. Ms Gould emphasised to you that you must not speculate or guess about any matter and she asked you to approach the Crown’s evidence with circumspection; for example, she suggested that the denim jacket with the Nurofen and other incriminating articles in the pockets was only put forward at trial as belonging to the accused on the basis of Detective Herring’s belief that it belonged to the accused, rather than on any evidential basis. It is, of course, eminently for you the jury to determine whether that is so –whether Detective Herring has proffered the denim jacket simply on the basis of an unfounded belief on his part, or whether the police evidence of seeing the jacket hanging on the back of the chair on which the accused was sitting was credible and provides a rational and logical basis for that belief by Detective Herring. That is eminently a jury matter to decide.

[22] The jury, after the summing-up, asked the Judge to restate the requirements of proof beyond reasonable doubt and to further explain the law relating to circumstantial evidence and that was done. Subsequently the jury found the appellant guilty of the conspiracy offence.

[23] It is part of the appellant’s case that when Mr Ellis was sentenced the summary of facts before Wild J, who was the sentencing Judge, included a reference to the jacket. However, it simply said:

The denim jacket was found on the back of the chair in the kitchen where the defendant and his associate were first seen by police.

[24] Although it cannot possibly be relevant, the appellant also seeks to make something of the fact that in sentencing Mr Ellis, Wild J treated the jacket as being his.

[25] In his affidavit in this Court the appellant deposes that his trial counsel told him at about the time of the s 347 hearing that because Mr Ellis had pleaded guilty he could not call him as a witness as he wished to do.

[26] The appellant in his affidavit says that he had no knowledge until his trial that it was going to be suggested the jacket was his. The appellant further says that the jacket was not his and that he would never have worn a jacket of that kind.

[27] Mr Ellis deposes that the jacket and its contents were his and not the appellant’s. The Crown has not sought to cross-examine either Mr Ellis or the appellant on their affidavits.

[28] Trial counsel for the appellant deposes that she had no idea prior to trial that the Crown would claim the jacket belonged to the appellant.

[29] The appellant’s trial counsel goes on to state that she made a trial decision that she would not ask for the jacket to be produced and for the appellant to try it on.

[30] The appellant’s trial counsel then deposes that she discussed the matter with the appellant and told him:

We could not call Ellis as he had pleaded guilty to conspiring with him so could not say anything to contradict that; this remained my view.

[31] Trial counsel went on to say that in the end she decided to tell the jury in her address that it was not evidence for a police officer to say that he “believed” an item belonged to an accused because it suited the police case but to ignore that and consider only what had been properly proved against the appellant.

Submissions

[32] The appellant submits that the appellant’s trial counsel was entitled to assume, with good reason, that the police case was that the jacket belonged to Mr Ellis. It is submitted that it was an important piece of evidence in that it contained the Nurofen pills, which could be used to manufacture methamphetamine, as well as methamphetamine. If the jacket was the appellant’s then it was an indication that he had brought a precursor substance to Mr Ellis’s address which supported the contention that he was involved in an agreement to manufacture methamphetamine at Mr Ellis’s place as the defence had had to concede that the materials were sufficient for manufacturing to occur.

[33] The appellant further submits that the suggestion that the jacket was the appellant’s was a strong part of the Crown’s case and not simply a make-weight. It is submitted that that is supported by what the Judge said in her summing up: see [20] above. It is submitted that had the jury found there was a reasonable doubt about whether the jacket and its contents were the appellant’s then it would have been open to the jury to return a verdict of not guilty.

[34] It is submitted that as the appellant was not aware the Crown was alleging the jacket was his until the opening address of the prosecutor, it would have been possible at that time for the accused to have claimed prejudice and sought an adjournment of the trial to clarify the ownership of the jacket.

[35] It is submitted that it is likely that the jury believed that the jacket belonged to the appellant as there was no evidence that it did not and the only evidence was from the detective who said that he believed that it did. It is thus submitted it is likely the jury would have used the evidence to convict the appellant.

[36] It is accepted for the appellant, having regard to the affidavit of his trial counsel, that the reason why Mr Ellis was not called as a witness did not relate to his compellability but to trial tactics. Nevertheless the appellant says he believed he could not be called and that was not correct. It was possible that Mr Ellis could have been called as a witness.

[37] It is also submitted that the detective could have been cross-examined in reliance on Mr Ellis’s statement that he was the owner of the jacket. Other evidence might also have been capable of being led as to the ownership of the jacket if the appellant had known of the Crown’s change of stance as to its ownership prior to trial.

[38] It is accordingly submitted that what occurred in respect of the jacket has given rise to a miscarriage of justice. It does not matter whether it be as a result of a fundamental error on the part of counsel or as a result of the manner in which the Crown changed its position in respect of the jacket.

[39] It is submitted that however the appeal is approached it should be allowed. If the jacket was indeed Mr Ellis’s, and the Nurofen pills within it his, then there is at least a reasonable prospect the jury may have reached a different conclusion as to the appellant’s guilt.

[40] For the Crown it is submitted that the trial counsel made no error and that there has been no miscarriage of justice.

[41] It is submitted that the issue for the jury was a narrow one; were the appellant and Mr Ellis involved by way of agreement to make methamphetamine or was each only individually so interested?

[42] The appellant did not give or call evidence. It is submitted that failure to call

Mr Ellis could not be a radical error as understood in terms of R v Pointon [1985] 1

NZLR 109 or R v Sungsuwan [2005] NZSC 57.

[43] The Crown submits that the case against the appellant was powerful because:

1. He and Mr Ellis were found at the latter’s house;

2. The two were friends;

3. Mr Ellis’ home had undoubtedly been used as a site to manufacture methamphetamine;

4. Robitussin had seemingly been used in the process (bottles and packaging were found in the rubbish bag in the basement);
5. Nine bottles of Robitussin were found in the appellant’s car. These had been purchased from a variety of pharmacies;

6. The appellant had equipment at his own home that could be used to manufacture methamphetamine;

7. A small quantity of methamphetamine was found on the appellant.

[44] The Crown further submits the issue was possession of the contents of the jacket, which could be joint in nature.

[45] It is submitted for the Crown that the calling of Mr Ellis as a witness would have been tactically perilous. Trial counsel was correct in her determination that it was too dangerous to the appellant to call Mr Ellis. He was too vulnerable to cross- examination in a manner highly unfavourable to the appellant.

[46] In any event it is submitted that the contents of the jacket were of limited direct relevance to the central issue for the jury. The more significant evidence was that relating to the Robitussin in the appellant’s car.

[47] It is further submitted there was no duty of disclosure on the Crown in respect of its theory of the case and all relevant evidence was disclosed to the appellant.

[48] Thus it is submitted that however the matter is looked at, there was no miscarriage of justice.

Discussion

[49] We approach the appeal in the light of what the majority of the Supreme

Court has said in Sungsuwan, particularly at [69] and [70]:

[69] It is necessary to emphasise that the statutory ground of appeal justifying intervention is that there was a miscarriage of justice. That was clearly recognised in Pointon. The focus therefore is on outcome, with the cause providing context. There has been a trend in judgments since Pointon, including that of the Court of Appeal in this case, to overlook this and to regard the need to find some “radical” error by trial counsel as a necessary precondition of any consideration of appellate intervention. This seems to stem from reading “radical” simply as “serious” whereas it was clearly intended in Pointon to carry its correct meaning of fundamental. A “radical” error thus is one that goes to the root of the trial process – one that is likely

to have affected the outcome. In that sense it is not a precondition of a miscarriage of justice; it raises a risk of a wrong verdict and so itself constitutes a miscarriage of justice. There is no threshold enquiry necessary into the seriousness of counsel’s conduct. In this respect the term “radical error”, with its pejorative connotation and the tendency to equate it with “serious error”, is perhaps better avoided.

[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 ensue 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 that time, that conduct may have met the objectively reasonable standard of competence.”

[50] This is one of those rare cases where we think it appropriate to intervene notwithstanding that was nothing on the part of trial counsel that could be regarded as a fundamental error affecting outcome and no conduct by the Crown that could be regarded as improper. We are concerned that the combination of circumstances arising in this case has led to a miscarriage of justice.

[51] The circumstances that weigh with us include the following:

a) Until the Crown’s opening in the trial the Crown case had proceeded on the basis the jacket was not the appellant’s. That was its position on the s 347 application where there was no suggestion the jacket formed part of its case against the appellant. There was thus no reason for the appellant or his counsel to prepare for trial on the basis that the Crown alleged the jacket was his. The Crown’s pre-trial position had given quite the opposite impression and the change of position had not been signalled prior to trial.

b) In a short trial, as this was, there was no opportunity for counsel to explore the true position or even be in a position to cross-examine effectively upon the basis of Mr Ellis’s admission the jacket was his. Nor was there any opportunity for counsel to enquire into possible evidence as to the ownership of the jacket.

c) At this time there is uncontroverted evidence before us that the jacket was Mr Ellis’s. However, the jury’s verdict was upon the basis that it was open to them to find it was the appellant’s.

d) It cannot be said the jacket was irrelevant to the jury’s consideration of the appellant’s guilt when the case against him was necessarily based on circumstantial evidence. If the jury had had uncontroverted evidence before it the jacket belonged to Mr Ellis it might have looked at the case against the appellant quite differently. It is clear the ownership of the jacket was material to the trial as the summing up made plain.

e) Trial counsel’s understandable failures to ask for an adjournment and to have explored whether the advantages of calling Mr Ellis as a witness outweighed the risks disadvantaged the appellant. So did her cross-examination of the detective eliciting his statement of belief the jacket was the appellant’s, combined with the failure to then cross- examine as to the statement of Mr Ellis and the prior position of the police. On the face of it nothing had changed in respect of the jacket except that Mr Ellis had pleaded guilty to the major charge against him. There is at least the suspicion the police were then able to cut their cloth in the case against the appellant differently when there was no change of facts to justify that.

[52] Overall therefore we are left with the uneasy feeling that the unusual combination of circumstances in this case might have led to a miscarriage of justice. In those circumstances the only safe course is to set aside the conviction for the conspiracy and order a new trial.

Result

[53] The appeal is allowed. The appellant’s conviction for conspiring with Shane Andrew Ellis to manufacture a class “A” controlled drug namely methamphetamine is set aside. A new trial is ordered.

Solicitors:

Paino & Robinson, Upper Hutt for Appellant

Crown Law Office, Wellington