R v White CA220/05 [2005] NZCA 400 (1 December 2005)

Last Updated: 21 January 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [22]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA220/05

THE QUEEN

v

DEAN CHARLES WHITE

Hearing: 1 December 2005

Court: William Young, Baragwanath and Potter JJ Counsel: P J Kaye for Appellant

M T Davies for Crown

Judgment: 1 December 2005

_{JUDGMENT OF THE COURT}

A The appeal is allowed;

B The convictions are quashed; and

_{C A new trial is directed.}

R V WHITE CA CA220/05 1 December 2005

D Order prohibiting publication of the judgment and any part of the proceedings (except for the result as set out in [22]) in news media or on Internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest permitted.

REASONS

(Given by William Young J)

Introduction

[1] The appellant, Dean Charles White, was found guilty by a jury in the High Court at Auckland on counts alleging the manufacture of the Class A controlled drug methamphetamine and possession of equipment and precursor substances contrary to s 6(1)(b) of the Misuse of Drugs Act 1975 (“the Act”).

[2] He now appeals against conviction.

Factual background

[3] In late 2003 and early 2004 the appellant was renting premises at 4 Maraetai School Road, Maraetai. On 16 January 2004 the police executed a search warrant at his house where they found the equipment and precursor substances which were the subject of the charges under s 6(1)(b) of the Act along with other evidence from which it could be inferred that methamphetamine had been manufactured.

[4] The appellant’s defence to these charges, signalled when he was first interviewed by the police and as advanced at trial, was that the relevant material had been planted in his house. He has been, throughout, prepared to nominate two people who may have done this, Mr Grant Gordon and Ms Lorretta Chisnell.

[5] The house which the appellant rented was owned by Mr Gordon and Mr Basil Subritzky. There were two houses on the property with the appellant occupying the one at the front and the one at the back being occupied by Ms Angela Subritzky. She is the daughter of Mr Basil Subritzky. Living with Ms Subritzky were her two children (one of whom is the child of Mr Gordon).

[6] The appellant developed a relationship with Ms Subritzky and terminated an earlier relationship with Ms Chisnell. This happened just before Christmas 2003. On the appellant’s case at trial, his relationship with Ms Subritzky led to Ms Chisnell and Mr Gordon becoming aggrieved with him and this, and an associated desire on the part of Mr Gordon to obtain custody of his child from Ms Subritzky, provided them both with a motive to plant methamphetamine manufacturing equipment and precursor materials in his house. It is reasonably clear that Ms Chisnell did have an obsessive attitude towards the appellant (and indeed she admitted as much at trial) and that Mr Gordon was hostile towards the appellant. The police search of the appellant’s house was initiated by information provided to the police by Ms Chisnell.

The appeal to this Court

[7] The appeal to this Court is on two grounds. First, that evidence given by Mr Gordon to the effect that the appellant was a user of methamphetamine resulted in illegitimate prejudice to the appellant which was not adequately or appropriately dealt with by the trial Judge and secondly that there is now new evidence available which warrants an order for a new trial.

The evidence of Mr Gordon as to the appellant smoking methamphetamine

[8] The Crown initially intended to lead evidence from Ms Chisnell to the effect that the appellant had, on occasion, smoked methamphetamine or “P”. The admissibility of this evidence was challenged and, in a pre-trial ruling, Ellen France J held that it should not be given.

[9] When Mr Gordon was being cross-examined at trial he asserted gratuitously that the appellant smoked “P”. Counsel then acting for the appellant sought a mistrial but this was declined by the Judge who considered that she could adequately address the issue with a firm direction to the jury.

[10] When she came to sum up to the jury she said:

[33] Mr Gordon in his evidence made some reference to being aware Mr White smoked “P”. You should ignore that completely. It is not relevant to this trial and you must put it out of your minds. Even if it were true, there is no proper link to be made between that and the charges Mr White faces.

[11] The argument as to this aspect of the appeal was that in effect all the Judge did was restate the objectionable evidence which she also by implication, suggested might be true. Mr Kaye asserted that the underlying prejudice simply was not adequately addressed.

[12] We do not see this point as warranting the allowing of the appeal.

[13] There is such a world of difference between smoking and manufacturing methamphetamine that evidence to the effect that the appellant had smoked “P” could have no significant probative value in relation to the charge against him and, as a matter of commonsense, only limited prejudicial effect. In that context, we see no reason to assume that the jury would draw anything adverse to the appellant from the evidence in question and likewise there is no reason to assume that the jury would not have complied with the Judge’s direction.

[14] As well, the context and dynamics of the trial were such that an additional allegation made by Mr Gordon could have had no appreciable effect on the jury’s evaluation of the case. Mr Gordon’s evidence, as a whole, was extremely unfavourable to the appellant and, if he was accepted by the jury as a witness of truth, it was practically inevitable that the jury would find the appellant guilty. In that context, it is difficult to see how the gratuitous remark made by Mr Gordon about the appellant smoking “P” could have significantly prejudiced the appellant. Indeed, it must have been taken by the jury as indicating ill will on the part of

Mr Gordon to the appellant (as it plainly did) and, in this indirect way, to have supported the defence case.

The fresh evidence

[15] The fresh evidence which the appellant relies on is in the form of an affidavit from Ms Leandra Rogers which she only swore this morning.

[16] Ms Rogers is a friend of Ms Trina White who is the appellant’s sister and who gave evidence for the defence at the trial. Ms Rogers also knows Ms Subritzky and Mr Gordon.

[17] In her affidavit, Ms Rogers asserts that in late December 2003 and early January 2004 Mr Gordon and Ms Chisnell were extremely upset about the relationship between the appellant and Ms Subritzky. She claims Ms Chisnell acknowledged to her that she had broken into the appellant’s house. She also asserts that in early January she was at Mr Gordon’s house when Ms Chisnell turned up and there was a three-sided discussion that followed. According to Ms Rogers, Ms Chisnell and Mr Gordon sought to find out where the appellant and Ms Subritzky were. When they found out that they were away together they were both very angry and upset and both made generalised threats of harm in relation to the appellant and Ms Subritzky. In the course of the discussions on this day Mr Gordon and Ms Chisnell acknowledged having been into both houses on the property (ie that occupied by the appellant and that occupied by Ms Subritzky).

[18] We heard Ms Rogers give oral evidence this morning. In the course of this evidence she explained in some detail why it was not until the day of the hearing that she swore the affidavit. She indicated that initially she had been reluctant to swear the affidavit due to an unwillingness to get involved in the case. She also discussed how and why she came forward with her new evidence after the trial and did not do so earlier. Much of the cross-examination focused on the context in which the discussions referred to by Ms Rogers occurred. The suggestion of the prosecutor was that her evidence was consistent with Ms Chisnell’s obsessive interest in the appellant and Mr Gordon’s strong sense that the appellant was not an appropriate

person to be involved in the life of his child. This aspect of the cross-examination highlighted the reality that the general drift of the evidence of Ms Rogers was congruent with the dynamics of the relevant interpersonal relationships as they were in early 2004. As well, it serves to explain why she might not have seen any obvious connection between what she was told and the charges which the appellant faced. She was adamant that she was not aware that his defence at trial was that he had been set up.

[19] We are of the view that the evidence is relevantly fresh. There is no obvious reason why the appellant and his advisers should have known of the discussions to which Ms Rogers has referred and thus no reason why they should have approached her before trial.

[20] As to cogency, we agree that there is a sense in which the new evidence is simply more of the same. It was clear at trial that Ms Chisnell and Mr Gordon were hostile to the appellant by early January 2004. There was evidence from Ms Subritzky of a threatening text she said that she received from Mr Gordon on or about 10 January 2004 (albeit that Mr Gordon did not accept that he had sent such a text). Ms Chisnell accepted that she had been into the appellant’s house (albeit somewhat earlier than what, on the appellant’s case, was the relevant time. Indeed, on her evidence, it was what she saw when she went there and admissions made by the appellant to her which led to her reporting the appellant to the police. On the other hand, the evidence of Ms Rogers is inconsistent with the evidence of Mr Gordon at trial when he denied entering the appellant’s house. If accepted, her evidence would necessarily raise the question why Mr Gordon had been there. Further, her evidence of threats made by Mr Gordon and Ms Chisnell might be thought to be more credible than that of Ms Subritzky given that she is not so closely associated with the appellant. In context, therefore, we see the evidence as relevantly cogent.

[21] We see it as sufficiently credible for present purposes. She has no previous convictions and no obvious axe to grind. As we have noted already, there is a degree of consistency between her evidence and the underlying personal relationships.

Result

[22] The appeal is allowed, the convictions are quashed and we direct that there be a new trial.

Solicitors:

Crown Law Office, Wellington