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MCGREGOR v R [2005] NZCA 7 (16 February 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA292/04

THE QUEEN

v

JOHN DARRYL MCGREGOR

Hearing: 14 February 2005

Bench: Glazebrook, Robertson and Doogue JJ

Counsel: C D Savage for Appellant
J A Farish for Crown

Judgment: 16 February 2005

JUDGMENT OF THE COURT

The appeals are dismissed.

REASONS

(Given by Robertson J)

Introduction

[1] This case involves an appeal against conviction on three charges under the Misuse of Drugs Act 1975, together with an appeal against a sentence of 12 months imprisonment on a receiving charge under s 258(1) of the Crimes Act 1961, which was to be advanced only if the conviction appeals on the Misuse of Drugs counts were successful. The three conviction appeals stand or fall together.
[2] Mr McGregor faced trial in the District Court at Invercargill on an indictment containing four counts:

(a) That between 1 October 2002 and 25 June 2003 at Blackmount he cultivated a prohibited plant, namely the genus cannabis.
(b) That on 25 June 2003 at Blackmount he had in his possession a Class C controlled drug namely cannabis plant material for the purpose specified in paragraph (e) of subsection (1) of section 6 of the Misuse of Drugs Act 1975.
(c) That on 25 June 2003 at Blackmount he attempted to produce a Class B controlled drug namely cannabis oil.
(d) That on a date unknown, but between 5 September 2002 and 25 June 2003 at Blackmount, he received from a person or persons unknown 5 x 100 litre drums of Roundup weed killer valued at $5,620.00, the property of Land Base, before then obtained by a crime, knowing it had been dishonestly obtained.

Background

[3] Mr McGregor and a partner purchased Blackmount, a large rural property in Southland, in 1996 for about $700,000.00. At the time of his arrest in June 2003, Mr McGregor was the sole owner of the property which by then had a Government Valuation of $1.1 million.
[4] The execution of a Search Warrant on the property on 25 and 26 June 2003 revealed a large amount of cannabis and cannabis preparation in and around the dwelling house, shearing quarters and outbuildings. A quantity of this was in white plastic pails, which were partially hidden in bush. Some of these pails were adjacent to an area where large drums of "Roundup" were located. Mr McGregor accepted he had placed the drums in that position. The Crown contention was that those drums were among 7 x 100 litre drums stolen from Land Base in Invercargill in September 2002.
[5] On two plastic bags containing cannabis which were found inside a pail, the appellant’s fingerprints were identified.
[6] On 5 August 2003 the Police returned to the property and executed a further Search Warrant. On this occasion they located two cannabis plots which had recently been cultivated on land neighbouring Mr McGregor’s property and which were accessible by way of a four-wheel drive track from his land.
[7] The total cannabis discovered was valued at least at $100,000 and the Crown contended more likely in excess of $250,000.
[8] At the time of the search, Mr McGregor’s then partner and at least three other adults occupied the property with him. The defence was that Mr McGregor had no knowledge of the cannabis and had not participated in any way in its cultivation, the harvesting of it or the use of it in attempting to produce cannabis oil. He contended that other persons who had been resident at his property could have been involved. He claimed that the Police investigation had been entirely "blinkered".
[9] The case against Mr McGregor was circumstantial and, in its ultimate analysis, required an assessment of credibility of the various coincidences which demanded explanation. Both when interviewed by the Police and subsequently, the appellant consistently and vehemently denied knowledge of the illicit activities on his property, or participation in them, and had explanations for potentially incriminating matters.

The appeal

[10] The sole ground of appeal against the Misuse of Drugs Act convictions was that the appellant was denied a fair trial because the Judge erred in permitting the prosecutor to question the appellant on matters which were irrelevant to the issues to be established and therefore inadmissible as a matter of law but highly prejudicial. As Mr Savage acknowledged in the course of the hearing, he had to go further and establish that there was, as a result, a miscarriage of justice.
[11] Counsel submitted that there were three irrelevant, inadmissible and prejudicial matters all of which were intermeshed. First, a series of questions in cross examination about Mr McGregor’s knowledge that, following conviction, the Police could obtain Orders in respect of his property under the Proceeds of Crime Act 1991. Particular emphasis was placed on the fact that these consequences had happened to his brother in 1998. Objection was taken to these questions and the discussion about his knowledge as a result of his brother’s predicament. It is now said that none of this went to any of the elements which required proof and that it was highly prejudicial.
[12] In response, Ms Farish noted that evidence about the property sale issue had first been raised in evidence in chief, as part of the defence theory that the Police had been entirely ‘blinkered’ in their investigation of the case. Mr McGregor volunteered that he had sold, following legal advice from his counsel, that the Police would confiscate the property and he just wanted to realise enough to cover debts and pay all the money he owed.
[13] It was argued by the Crown that the true reasons for his selling the property within seven weeks of his arrest for $350,000 was because he knew he had been caught and what the consequences would be. The sale was at about one-third of Government Valuation. By the time of trial the property had been put on the market by the purchasers from him at $1.4 million. This was to be contrasted with the position when Mr McGregor initially purchased the property for a sum slightly in excess of the Government Valuation.
[14] We are satisfied that, in the circumstances of this case, it was arguably inconsistent with Mr McGregor’s protestations of innocence that he would so quickly sell the property at such a gross undervalue. Once the topic had been raised by the defence, the Crown was entitled to investigate the issue and all the circumstances. From the evidence available, it was entitled to submit that such a course of behaviour was not consistent with a person who had no knowledge or involvement in the criminal activity. Further, that this knowledge was not because of recent legal advice but because of what happened to his brother.
[15] Mr McGregor was entitled to assert to the jury that he was apprehensive because the Police were ‘blinkered’, but he cannot limit the facts to those of his choosing and object to others being advanced. We find nothing untoward in the cross examination on this point.
[16] The second particular aspect complained of was the reference to his brother’s conviction on cannabis charges which arose in this same context. Evidence was given by an officer of a large scale cannabis operation and a subsequent confiscation, but no suggestion that it had been linked to the appellant or his brother.
[17] This evidence was in a written brief which was, by consent, read to the jury. If there was an objection to it, that should have been signalled and admissibility determined. Consent to its being read is inconsistent with an objection. In any event it was part of the background on the knowledge point. Detective Nelson was cross-examined, but nothing was raised in respect of this part of the evidence.
[18] It is now contended that the jury, knowing that his brother had been convicted of cannabis-related offences in 1998 and having had his land confiscated as a consequence, would be wrongly influenced in that it raised the spectre of an ongoing family enterprise unconnected in any way with the current alleged offending. It is submitted that the evidence would have been inadmissible if it had been about the appellant and was similarly inadmissible if it was about a close family member, especially as he was said to have had an involvement with the appellant’s property in his offending.
[19] There is nothing in the record that has been drawn to our attention that suggests there was any suggestion that, because the brother had problems of this sort in the past, it was probative as to the appellant’s guilt. The matter was raised by the issue introduced by the appellant as to how he knew what happened post-conviction on a drug charge. It went to his credibility. There is no substance in this ground of appeal.
[20] Finally it is contended that the trial Judge’s direction was inadequate on the evidence about the sale of the property at a distinct undervalue.
[21] The trial Judge said:

As to the issue of the sale of the property, Mr Savage has said to you, well the Crown have pointed to you that the accused must be guilty because he took steps to pretty rapidly sell his property at an undervalue. You have heard Mr Garland’s submission in that regard, that, as you might think, it shows that the accused knew that the evidence was strong enough to support his guilt, because he took pretty prompt steps to sell it and he sold it at a gross undervalue to what it was worth. Mr Savage’s reply to that was, well you heard the accused say he took legal advice at the time, he realised there could be a restraining order placed on the property, he wanted to ensure that his debts were extinguished and, as Mr Savage said to you, he would have been a fool on legal advice not to have taken steps to mitigate his potential loss. Again, you make what you can of submissions in relation to that.

[22] In our view that fairly sets the parameters and the alternatives which were available. The Crown’s contention was a possible interpretation. It was a matter which was for the jury to determine in light of the submissions they had heard. We see nothing in this direction about which complaint could be made.

Outcome

[23] The issues made separately and collectively are without substance. At its heart, this case was about whether Mr McGregor’s explanation that he had no knowledge let alone involvement in what was happening on his property could reasonably be true. That decision, in any sensible way, could not have been improperly influenced by any of these points.
[24] The appeals against conviction on the drugs charges are accordingly dismissed. The issue of the sentence on the receiving charge is accordingly only of academic value and not pursued. It too is dismissed.

Solicitors:
O’Driscoll & Marks, Solicitors for Appellant
Crown Solicitors, Christchurch

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[1]	This case involves an appeal against conviction on three charges under the Misuse of Drugs Act 1975, together with an appeal against a sentence of 12 months imprisonment on a receiving charge under s 258(1) of the Crimes Act 1961, which was to be advanced only if the conviction appeals on the Misuse of Drugs counts were successful. The three conviction appeals stand or fall together.
[2]	Mr McGregor faced trial in the District Court at Invercargill on an indictment containing four counts:

[3]	Mr McGregor and a partner purchased Blackmount, a large rural property in Southland, in 1996 for about $700,000.00. At the time of his arrest in June 2003, Mr McGregor was the sole owner of the property which by then had a Government Valuation of $1.1 million.
[4]	The execution of a Search Warrant on the property on 25 and 26 June 2003 revealed a large amount of cannabis and cannabis preparation in and around the dwelling house, shearing quarters and outbuildings. A quantity of this was in white plastic pails, which were partially hidden in bush. Some of these pails were adjacent to an area where large drums of "Roundup" were located. Mr McGregor accepted he had placed the drums in that position. The Crown contention was that those drums were among 7 x 100 litre drums stolen from Land Base in Invercargill in September 2002.
[5]	On two plastic bags containing cannabis which were found inside a pail, the appellant’s fingerprints were identified.
[6]	On 5 August 2003 the Police returned to the property and executed a further Search Warrant. On this occasion they located two cannabis plots which had recently been cultivated on land neighbouring Mr McGregor’s property and which were accessible by way of a four-wheel drive track from his land.
[7]	The total cannabis discovered was valued at least at $100,000 and the Crown contended more likely in excess of $250,000.
[8]	At the time of the search, Mr McGregor’s then partner and at least three other adults occupied the property with him. The defence was that Mr McGregor had no knowledge of the cannabis and had not participated in any way in its cultivation, the harvesting of it or the use of it in attempting to produce cannabis oil. He contended that other persons who had been resident at his property could have been involved. He claimed that the Police investigation had been entirely "blinkered".
[9]	The case against Mr McGregor was circumstantial and, in its ultimate analysis, required an assessment of credibility of the various coincidences which demanded explanation. Both when interviewed by the Police and subsequently, the appellant consistently and vehemently denied knowledge of the illicit activities on his property, or participation in them, and had explanations for potentially incriminating matters.

[10]	The sole ground of appeal against the Misuse of Drugs Act convictions was that the appellant was denied a fair trial because the Judge erred in permitting the prosecutor to question the appellant on matters which were irrelevant to the issues to be established and therefore inadmissible as a matter of law but highly prejudicial. As Mr Savage acknowledged in the course of the hearing, he had to go further and establish that there was, as a result, a miscarriage of justice.
[11]	Counsel submitted that there were three irrelevant, inadmissible and prejudicial matters all of which were intermeshed. First, a series of questions in cross examination about Mr McGregor’s knowledge that, following conviction, the Police could obtain Orders in respect of his property under the Proceeds of Crime Act 1991. Particular emphasis was placed on the fact that these consequences had happened to his brother in 1998. Objection was taken to these questions and the discussion about his knowledge as a result of his brother’s predicament. It is now said that none of this went to any of the elements which required proof and that it was highly prejudicial.
[12]	In response, Ms Farish noted that evidence about the property sale issue had first been raised in evidence in chief, as part of the defence theory that the Police had been entirely ‘blinkered’ in their investigation of the case. Mr McGregor volunteered that he had sold, following legal advice from his counsel, that the Police would confiscate the property and he just wanted to realise enough to cover debts and pay all the money he owed.
[13]	It was argued by the Crown that the true reasons for his selling the property within seven weeks of his arrest for $350,000 was because he knew he had been caught and what the consequences would be. The sale was at about one-third of Government Valuation. By the time of trial the property had been put on the market by the purchasers from him at $1.4 million. This was to be contrasted with the position when Mr McGregor initially purchased the property for a sum slightly in excess of the Government Valuation.
[14]	We are satisfied that, in the circumstances of this case, it was arguably inconsistent with Mr McGregor’s protestations of innocence that he would so quickly sell the property at such a gross undervalue. Once the topic had been raised by the defence, the Crown was entitled to investigate the issue and all the circumstances. From the evidence available, it was entitled to submit that such a course of behaviour was not consistent with a person who had no knowledge or involvement in the criminal activity. Further, that this knowledge was not because of recent legal advice but because of what happened to his brother.
[15]	Mr McGregor was entitled to assert to the jury that he was apprehensive because the Police were ‘blinkered’, but he cannot limit the facts to those of his choosing and object to others being advanced. We find nothing untoward in the cross examination on this point.
[16]	The second particular aspect complained of was the reference to his brother’s conviction on cannabis charges which arose in this same context. Evidence was given by an officer of a large scale cannabis operation and a subsequent confiscation, but no suggestion that it had been linked to the appellant or his brother.
[17]	This evidence was in a written brief which was, by consent, read to the jury. If there was an objection to it, that should have been signalled and admissibility determined. Consent to its being read is inconsistent with an objection. In any event it was part of the background on the knowledge point. Detective Nelson was cross-examined, but nothing was raised in respect of this part of the evidence.
[18]	It is now contended that the jury, knowing that his brother had been convicted of cannabis-related offences in 1998 and having had his land confiscated as a consequence, would be wrongly influenced in that it raised the spectre of an ongoing family enterprise unconnected in any way with the current alleged offending. It is submitted that the evidence would have been inadmissible if it had been about the appellant and was similarly inadmissible if it was about a close family member, especially as he was said to have had an involvement with the appellant’s property in his offending.
[19]	There is nothing in the record that has been drawn to our attention that suggests there was any suggestion that, because the brother had problems of this sort in the past, it was probative as to the appellant’s guilt. The matter was raised by the issue introduced by the appellant as to how he knew what happened post-conviction on a drug charge. It went to his credibility. There is no substance in this ground of appeal.
[20]	Finally it is contended that the trial Judge’s direction was inadequate on the evidence about the sale of the property at a distinct undervalue.
[21]	The trial Judge said:

[23]	The issues made separately and collectively are without substance. At its heart, this case was about whether Mr McGregor’s explanation that he had no knowledge let alone involvement in what was happening on his property could reasonably be true. That decision, in any sensible way, could not have been improperly influenced by any of these points.
[24]	The appeals against conviction on the drugs charges are accordingly dismissed. The issue of the sentence on the receiving charge is accordingly only of academic value and not pursued. It too is dismissed.