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The Queen v Harris [2006] NZCA 101 (25 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA442/05

THE QUEEN

v

MERVYN STEWART HARRIS

Hearing: 16 May 2006

Court: O'Regan, Panckhurst and Potter JJ

Counsel: R D Stone for Appellant
B J Horsley for Crown

Judgment: 25 May 2006

JUDGMENT OF THE COURT

Leave to appeal out of time is granted but the appeal is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1] The appellant was convicted of possession of cannabis for the purpose of sale under s 6(1)(f) of the Misuse of Drugs Act 1975 after a jury trial in the District Court at Napier. He was sentenced by the trial Judge, Judge Adeane, to 12 months’ imprisonment. He appeals against conviction to this Court.

Facts

[2] On 2 April 2005 police executed two search warrants at the appellant’s property. The fruits of these searches were: five mature cannabis plants, two smaller cannabis plants, a beer chiller bag containing five separate bags of cannabis (three of which were packaged into one ounce bags), a one ounce bag discovered in the driver’s side door of the appellant’s vehicle, electronic scales and $500 in cash ($400 of which was made up of $20 bills). Police recovered 116 grams of cannabis from the appellant’s vehicle and 146 grams from the chiller bag.
[3] The appellant pleaded guilty to a charge of cultivating cannabis under ss 9(1) and (2) of the Misuse of Drugs Act, but defended the charge of possession for sale by saying the cannabis was for his own use.
[4] During the trial, the appellant’s then counsel, Mr Jensen, disclosed the appellant’s previous convictions. This occurred during Mr Jensen’s cross-examination of a police officer, Constable Glen Burrell:

Q: Finally, constable can you confirm for us and Sir it’s I know that you’ll think that this is unusual but it is part of the defence case that Mr Harris has a history of cannabis offending?
A: Correct.
Q: Starting in 1993 he was convicted of cultivating cannabis?
A: Yeah.
Q: Would you like to just confirm –
THE COURT: No I don’t know that the constable can do that with that document. Are you planning to have the constable produce the document?
Q: When a person is convicted of an offence it gets produced into a document that the police have which is called a criminal and traffic history?
A: Correct.
Q: Police rely on that document to be accurate?
A: I’d hope everybody would.
Q: Yes. And when or before well no as part of your affidavit to the Court to secure the search warrant you disclosed in your affidavit convictions that were relevant that Mr Harris had?
A: Correct.
Q: And I wish to confirm with you his cannabis offending history?
A: Yeah.
Q: 1993, cultivate cannabis correct?
A: Correct.
Q: 1993 again, possession of cannabis correct?
A: If you’re reading it yeah I mean I can’t remember.
Q: And possession of instruments for using cannabis. 2000 cultivating cannabis?
A: Correct.
Q: 2000 possession of cannabis seeds?
A: Correct.
Q: And in 2003 possession of cannabis correct?
A: Correct.
Q: For how long have you been a police officer, Constable?
A: Seven years, 71/2 years.
Q: All in Napier?
A: Most of the time.
Q: You have not run across Mr Mervyn Harris previously, have you?
A: No.

[5] In the cross-examination of another police officer, Detective Sergeant Nicholas Reid, the following exchange took place:

Q: You have been involved with drugs detection for how long Detective Sergeant?
A: 20 years.
Q: For how long in Napier?
A: 15.
Q: How long were you the head of the Drug Squad in Napier (inaudible)?
A: 6 years.
Q: Not once had you heard of Mr Mervyn Harris as a cannabis dealer had you?
A: I can’t recall.

[6] In the appellant’s evidence-in-chief, he confirmed Constable Burrell’s evidence as follows:

Q: We have heard earlier that you have had contact with the police in previous years about your cannabis use and cultivation. Do you agree with that?
A: Yeah.
Q: Have you previously ever been accused of dealing in cannabis?
A: No, never.

[7] In his summing up, the trial judge framed Mr Jensen’s disclosure of the appellant’s convictions in the following terms:

Mr Jensen asks you to look at the accused and make a commonsense assessment of him. He says the accused is credible in the narrative around this, that he has got a very long history of drug abuse and even drug offending for that matter, but he has never been called a dealer before and Mr Jensen says that he is not. He has told you that he is not and that you should accept that. That all of this cannabis was for his own use.

[8] The Judge said nothing to the jury about the status of previous convictions and the weight they ought to have in the jury’s deliberations.

The present appeal

[9] The notice of appeal to this Court was initially completed by the appellant in person. He has since instructed new counsel. The ground upon which the appeal now proceeds is in relation to Mr Jensen’s decision to disclose the appellant’s previous convictions. The appellant says that decision was a radical error and has resulted in a miscarriage of justice. The disclosure of the convictions materially affected the jury’s assessment of the appellant’s credibility. It is said the Judge had the opportunity to remedy this in his summing up, but declined to do so. This is said to have contributed to the miscarriage of justice.
[10] The appellant’s present counsel sought leave of this Court to amend the notice of appeal accordingly. There was no objection to this, and no prejudice to the Crown, and leave is granted. Counsel also sought an enlargement of the time for filing the appeal (it was filed a few days late). We grant this also.

Affidavit evidence

[11] Affidavit evidence from the appellant and from his trial counsel, Mr Jensen, was presented to, and accepted by, the Court. The appellant waived privilege to allow Mr Jensen to give evidence.
[12] In his affidavit, the appellant said that he and Mr Jensen had talked generally about the appellant’s giving evidence. He said Mr Jensen said he was going to bring up the appellant’s previous convictions to support the contention that the appellant was a user of cannabis, not a dealer. But he said there was never any discussion of the risks involved in disclosing those convictions, and he, the appellant, did not realise that disclosing the convictions could affect whether the jury accepted his evidence that he did not have the cannabis for the purpose of supply. He said that if he had known this, he would not have agreed to the disclosure of his convictions.
[13] In his affidavit, Mr Jensen said that Mr Harris was made well aware of the fact that the presumption of possession for supply would apply in his case, and that it would be necessary for him to give evidence in an attempt to rebut that presumption. Mr Jensen said the appellant was well prepared to give his evidence consistently with a defence of personal use of the cannabis. He said he and the appellant discussed how it was a positive that the appellant had convictions for cannabis use and cultivation stretching back for a number of years, but had never been charged with, or convicted of, any offence that was a drug dealing offence. Mr Jensen accepted that he did not obtain written instructions from the appellant authorising him to disclose the appellant’s convictions, but said that he was in no doubt that the appellant agreed to this course of action.
[14] Mr Jensen said he considered there was a considerable tactical advantage in disclosing the evidence of previous convictions, and that Mr Harris appeared to agree with this. Mr Jensen said he did not consider there were any disadvantages or that there was a risk that the jury would improperly use those previous convictions. He said that neither the Crown nor the Judge had ever suggested that, because the appellant had previous convictions, he was a less credible witness.
[15] Mr Jensen concluded that he considered Mr Harris was well aware of what the Court process entailed, including the fact that he would have to rebut the presumption, and that he knew what evidence he would give. He considered that the appellant was in agreement with the chosen avenue of defence and the tactics used to try to rebut the presumption.

Submissions

[16] On behalf of the appellant, Mr Stone submitted that there were three aspects of the case which had led to a miscarriage of justice. These were:

(a) The disclosure of the appellant’s previous convictions;

(b) The fact that the appellant was not provided with sufficient information on which to make an informed decision about agreeing to such disclosure;
(c) The trial Judge did not make reference to the previous convictions or to the use to which they could be put by the jury.

[17] He said that trial counsel’s decision to initiate the disclosure of the previous convictions was a radical error in the sense referred to in R v Sungsuwan [2006] 1 NZLR 730, that is it was an error which led to a miscarriage of justice. He said this was compounded by the fact that the Judge did not give a direction to the jury as to the use to which they could put this information. He accepted that the appellant had agreed with the course adopted by his trial counsel, but said that this needed to be read in the light of the fact that there was an inadequate explanation to the appellant that disclosure of his previous convictions may affect the jury’s assessment of his credibility.
[18] On behalf of the Crown, Mr Horsley said that the decision of trial counsel to reveal the previous convictions had to be considered in the light of the extremely strong Crown case against the appellant. In particular, he was found with a quantity of drugs above the presumption, and in circumstances where there were a number of significant indications of drug dealing. In particular, there were pre-packaged bags of cannabis located at his address (five separate bags, three of which were packed into 28 gram/ounce bags) and another 28 gram/ounce bag located in the door of the appellant’s vehicle. In addition, the police found five plants being grown indoors, electronic scales and $500 in cash. In the face of this very strong case, it was always going to be difficult for the appellant to persuade the jury that the cannabis was for his own use, not for drug dealing.
[19] Mr Horsley said that, in those circumstances, it was an understandable tactic for trial counsel to portray the appellant as a long time habitual user of cannabis, but one who had never been associated with drug dealing. Disclosure of his previous convictions was consistent with the defence case. He said that this meant that the decision of counsel was one which was likely to have been made by any competent trial counsel. He relied on the following observation of the Supreme Court in Sungsuwan at [66]:

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.

[20] Mr Horsley said there was no cause for concern that the Judge had not given a specific direction to the jury. He said it was clear that the only reason the convictions were revealed was because they were consistent with the defence case. He noted that the Crown had not suggested that the appellant’s previous convictions would be relevant to proof of drug dealing on a propensity basis or that they meant that the appellant was not a credible witness. In those circumstances there was no reason for the Judge to comment.
[21] Mr Horsley relied on the decision of this Court in R v Rika CA458/04 30 June 2005. In that case this Court found that the leading of the appellant’s previous minor convictions was a justified trial tactic and that no miscarriage of justice was occasioned by the trial Judge’s failure to make any comment about this in his summing up.
[22] Mr Horsley said that the present case could be distinguished from cases where previous convictions were inadvertently mentioned to the jury, in circumstances where they could reasonably be taken by the jury to indicate a lack of credibility on the part of the accused person.

Discussion

[23] While the decision of trial counsel to introduce evidence disclosing the appellant’s previous convictions was unusual, we are satisfied that there was not a radical error in the Sungsuwan sense. Another counsel may well have argued the case differently, but the decision of trial counsel was one which was considered and reasoned, and was agreed to by the appellant. The decision must be evaluated in the context of the reality of the case, which was that the appellant faced a very strong Crown case and did not have significant options open to him.
[24] We are also satisfied that there was no danger of a miscarriage resulting from the omission of any direction to the jury about the use of the previous convictions. We agree with Crown counsel that it was obvious to the jury that the point of this evidence was to support the defence case. There was no suggestion from either the Crown counsel or the Judge in his summing up that the existence of the previous convictions reflected badly on the credibility of the appellant. We see a number of similarities between this case and Rika, and reach the same conclusion as that which was reached in that case.

Result

[25] We dismiss the appeal.

Solicitors:
Souness Stone Law Partnership, Hastings for Appellant
Crown Law Office, Wellington

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[2]	On 2 April 2005 police executed two search warrants at the appellant’s property. The fruits of these searches were: five mature cannabis plants, two smaller cannabis plants, a beer chiller bag containing five separate bags of cannabis (three of which were packaged into one ounce bags), a one ounce bag discovered in the driver’s side door of the appellant’s vehicle, electronic scales and $500 in cash ($400 of which was made up of $20 bills). Police recovered 116 grams of cannabis from the appellant’s vehicle and 146 grams from the chiller bag.
[3]	The appellant pleaded guilty to a charge of cultivating cannabis under ss 9(1) and (2) of the Misuse of Drugs Act, but defended the charge of possession for sale by saying the cannabis was for his own use.
[4]	During the trial, the appellant’s then counsel, Mr Jensen, disclosed the appellant’s previous convictions. This occurred during Mr Jensen’s cross-examination of a police officer, Constable Glen Burrell:

[11]	Affidavit evidence from the appellant and from his trial counsel, Mr Jensen, was presented to, and accepted by, the Court. The appellant waived privilege to allow Mr Jensen to give evidence.
[12]	In his affidavit, the appellant said that he and Mr Jensen had talked generally about the appellant’s giving evidence. He said Mr Jensen said he was going to bring up the appellant’s previous convictions to support the contention that the appellant was a user of cannabis, not a dealer. But he said there was never any discussion of the risks involved in disclosing those convictions, and he, the appellant, did not realise that disclosing the convictions could affect whether the jury accepted his evidence that he did not have the cannabis for the purpose of supply. He said that if he had known this, he would not have agreed to the disclosure of his convictions.
[13]	In his affidavit, Mr Jensen said that Mr Harris was made well aware of the fact that the presumption of possession for supply would apply in his case, and that it would be necessary for him to give evidence in an attempt to rebut that presumption. Mr Jensen said the appellant was well prepared to give his evidence consistently with a defence of personal use of the cannabis. He said he and the appellant discussed how it was a positive that the appellant had convictions for cannabis use and cultivation stretching back for a number of years, but had never been charged with, or convicted of, any offence that was a drug dealing offence. Mr Jensen accepted that he did not obtain written instructions from the appellant authorising him to disclose the appellant’s convictions, but said that he was in no doubt that the appellant agreed to this course of action.
[14]	Mr Jensen said he considered there was a considerable tactical advantage in disclosing the evidence of previous convictions, and that Mr Harris appeared to agree with this. Mr Jensen said he did not consider there were any disadvantages or that there was a risk that the jury would improperly use those previous convictions. He said that neither the Crown nor the Judge had ever suggested that, because the appellant had previous convictions, he was a less credible witness.
[15]	Mr Jensen concluded that he considered Mr Harris was well aware of what the Court process entailed, including the fact that he would have to rebut the presumption, and that he knew what evidence he would give. He considered that the appellant was in agreement with the chosen avenue of defence and the tactics used to try to rebut the presumption.

[17]	He said that trial counsel’s decision to initiate the disclosure of the previous convictions was a radical error in the sense referred to in R v Sungsuwan [2006] 1 NZLR 730, that is it was an error which led to a miscarriage of justice. He said this was compounded by the fact that the Judge did not give a direction to the jury as to the use to which they could put this information. He accepted that the appellant had agreed with the course adopted by his trial counsel, but said that this needed to be read in the light of the fact that there was an inadequate explanation to the appellant that disclosure of his previous convictions may affect the jury’s assessment of his credibility.
[18]	On behalf of the Crown, Mr Horsley said that the decision of trial counsel to reveal the previous convictions had to be considered in the light of the extremely strong Crown case against the appellant. In particular, he was found with a quantity of drugs above the presumption, and in circumstances where there were a number of significant indications of drug dealing. In particular, there were pre-packaged bags of cannabis located at his address (five separate bags, three of which were packed into 28 gram/ounce bags) and another 28 gram/ounce bag located in the door of the appellant’s vehicle. In addition, the police found five plants being grown indoors, electronic scales and $500 in cash. In the face of this very strong case, it was always going to be difficult for the appellant to persuade the jury that the cannabis was for his own use, not for drug dealing.
[19]	Mr Horsley said that, in those circumstances, it was an understandable tactic for trial counsel to portray the appellant as a long time habitual user of cannabis, but one who had never been associated with drug dealing. Disclosure of his previous convictions was consistent with the defence case. He said that this meant that the decision of counsel was one which was likely to have been made by any competent trial counsel. He relied on the following observation of the Supreme Court in Sungsuwan at [66]:

[20]	Mr Horsley said there was no cause for concern that the Judge had not given a specific direction to the jury. He said it was clear that the only reason the convictions were revealed was because they were consistent with the defence case. He noted that the Crown had not suggested that the appellant’s previous convictions would be relevant to proof of drug dealing on a propensity basis or that they meant that the appellant was not a credible witness. In those circumstances there was no reason for the Judge to comment.
[21]	Mr Horsley relied on the decision of this Court in R v Rika CA458/04 30 June 2005. In that case this Court found that the leading of the appellant’s previous minor convictions was a justified trial tactic and that no miscarriage of justice was occasioned by the trial Judge’s failure to make any comment about this in his summing up.
[22]	Mr Horsley said that the present case could be distinguished from cases where previous convictions were inadvertently mentioned to the jury, in circumstances where they could reasonably be taken by the jury to indicate a lack of credibility on the part of the accused person.