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The Queen v Timutimu [2006] NZCA 328 (29 November 2006)

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The Queen v Timutimu [2006] NZCA 328 (29 November 2006)

Last Updated: 6 December 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/06

THE QUEEN

v

TURUWHENUA TIMUTIMU

Hearing: 22 November 2006

Court: Glazebrook, John Hansen and Harrison JJ

Counsel: C Wilkinson-Smith for Appellant
E M Thomas for Crown

Judgment: 30 November 2006 at 3pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Turuwhenua Timutimu appeals against his conviction following trial before a Judge and jury in the High Court at Auckland on one count of possessing methamphetamine for supply.
[2] Mr Timutimu’s counsel, Mr Wilkinson-Smith, who did not appear at trial, originally advanced two grounds in support of the appeal: first, that the verdict was against the weight of evidence and, second, that the trial Judge, Winkelmann J, wrongly allowed the Crown to call further evidence after it had closed its case. However, his oral argument focused primarily on the second argument.

Background

[3] The Crown case against Mr Timutimu was relatively straightforward. In the context of this appeal the evidence of two prosecution witnesses assumes importance. One was a police officer, Sergeant Simon Sherborne, who at about 3 am on 12 December 2004 stopped a car driven by Mr Timutimu. On searching the vehicle he found a number of small snaplock bags containing white crystal powder. He removed the bags to the Howick Police Station where he recorded and labelled the seized items. He weighed the packages and their contents together on a set of electronic scales found in the car. The aggregate weight was 6.6 grams.
[4] Sergeant Sherborne secured the packages in the Howick Police Station later that morning. He gave them an exhibit number, 04/609, and stored them in drug exhibit envelope 05/010. A police officer photographed the exhibits at about midday.
[5] The second material prosecution witness was Ms Kathleen Antunovich, a property officer employed by the New Zealand Police. Her brief was read by consent. She collected the drug envelope 05/010 from a locked drug store at the Papakura Police Station on 7 January 2005. She confirmed that the envelope was labelled with Mr Timutimu’s name.
[6] Later that day Ms Antunovich delivered the envelope to a scientist employed by the Institute of Environmental Science and Research Ltd in Mt Albert. The scientist issued a certificate confirming the existence of seven self-sealing plastic bags in the envelope, each containing white crystalline powder which she analysed as methamphetamine. The total weight of the powder, without the bags, was certified as 4.3 grams.
[7] At the conclusion of the Crown case Mr Timutimu’s then counsel, Mrs Michele Wilkinson-Smith, applied for an order discharging him from trial: s 347 Crimes Act 1961. Winkelmann J recorded that:

[2] The basis of the application was that the Crown had failed adequately to prove chain of custody in respect of the white substance that was found on search of a denim bag in the car driven by Mr Timutimu, and in particular that the Crown had failed to prove beyond reasonable doubt that the substance for which a s 31 certificate was issued by ESR to the effect that it was methamphetamine, was the same substance that was seized on search.
[3] Ms Wilkinson-Smith submitted that there are two significant gaps in the chain of custody. The first concerns the involvement of the police photographer in photographing the exhibits after they had been initially secured; his evidence not having addressed what he did with the exhibits after photographing them. The second gap is said to arise because the evidence establishes that the exhibits were sent to ESR from the Papakura Police Station, yet the evidence was that they had been secured at the Howick Police Station. There was no evidence to explain how they came to be at Papakura.

[8] Winkelmann J dismissed the application for this reason:

[8] I am satisfied that there is sufficient evidence so that a jury, properly directed, could reasonably conclude that it was the same seven self-sealing plastic bags which were found in the denim bag on the night of 12 December, which were ultimately delivered to ESR by Ms Antunovich. In particular, the consistency of the labelling, and the consistency of the packaging surrounding it, supports this conclusion. I also take into account that there is no evidence which supports an alternative inference such that to choose between the two inferences would be to guess. I note Ms Wilkinson-Smith’s submission that the ESR certificate put the weight of the powder at 4.3 grams whereas when Sergeant Sherborne had weighed the packages they weighed 6.6 grams. However, those packages were weighed on a different set of scales by Sergeant Sherborne, and moreover he was weighing the packages and powder, not the powder alone. I am satisfied therefore that the issue of whether or not the substance that was tested and found to be methamphetamine was the substance found in the denim bag is a matter properly left for the jury.

[9] Immediately after the Judge’s decision the Crown applied for leave to re-open its case. Counsel for the Crown, Ms Claire Ryan, sought to recall Sergeant Sherborne and Ms Antunovich. She submitted that the additional evidence was of a formal nature and would complete the two gaps identified by Mrs Wilkinson-Smith. Her application was based upon a misunderstanding arising from an earlier conversation between counsel about the nature and extent of the chain of custody evidence which the Crown was required to lead.
[10] Winkelmann J allowed the application. The Crown recalled Sergeant Sherborne and Ms Antunovich. The defence did not call evidence. The jury later convicted Mr Timutimu.

Decision

[11] In oral argument Mr Wilkinson-Smith acknowledged that the real challenge to Mr Timutimu’s conviction lay against Winkelmann J’s decision to allow the Crown to re-open its case and recall two further witnesses. In addition to the record he tendered and relied upon an affidavit sworn by Mrs Wilkinson-Smith. He acknowledged that the Judge’s decision was made in exercise of a discretionary power. He submitted, however, that the decision was wrong because Winkelmann J was not then fully acquainted with the relevant facts.
[12] In allowing the Crown’s application, Winkelmann J acknowledged the general principle that all evidentiary material to be relied upon by the prosecution probative of guilt must be adduced before the close of its case: R v Lee [1976] 2 NZLR 171 (CA). Its rationale is fairness to the accused, so that he or she has an adequate opportunity to know the Crown case and plan a defence accordingly: R v Chin [1985] HCA 35; (1985) 157 CLR 671. Nevertheless, the Court has an inherent jurisdiction to allow the Crown to call further evidence at a later stage. The discretion is to be used sparingly and in such a way as to strike the appropriate balance of justice between the Crown and the defence. The two recognised categories of exception are, first, situations involving purely formal issues and, second, where issues have arisen unforeseeably or ex improviso. The discretion will be exercised rarely outside these two exceptions: R v Francis (1990) 91 Cr App R 271 at 275 - 276.
[13] Winkelmann J then identified six principles which govern the relevant discretion. Among them are the degree of prejudice to the defence, the reason for failing to call the evidence at the proper time, and that the evidence is more likely to be admitted where its omission was of a mere formality, in contrast to a central issue in the case. The Judge heard from both Ms Ryan and Mrs Wilkinson-Smith. She found that the Crown’s failure to call the subject evidence arose from a misunderstanding between them as follows:

[15] ... I have no hesitation in accepting Ms Ryan’s statement that she had understood from her discussion with defence counsel that chain of custody of the drugs was not at issue, and that she was further reinforced in this view by the defence agreement to have the evidence of two witnesses read. Although Ms Ryan said to the jury in her opening that the Crown still had to prove chain of custody, I accept her explanation that she simply meant for this to provide a narrative for the jury. Accordingly, she did not pursue the more rigorous approach to proof that the Crown would normally do but rather presented the evidence as proof of the narrative.
...
[18] Finally, I consider it relevant that the Crown’s failure to call this evidence arose from a misunderstanding arising from discussions with defence counsel. Defence counsel knew at least from the Crown opening that the Crown was under the impression that the defence was not contesting chain of custody and she consented to the reading of the briefs of the two witnesses whose evidence is said to expose the gaps in the chain. In these circumstances I am of the view that counsel for the Crown could fairly have expected defence counsel to raise with her before the Crown closed its case, that chain of custody was at issue.

[14] Winkelmann J relied on two additional factors. One was that the Crown had only just closed its case; the other was that the subject evidence ‘could hardly be characterised as relating to the central issue in the case’: at [17]. Ultimately, and importantly, she was satisfied that justice would not be done if Mr Timutimu was acquitted as a result of the misunderstanding: at [19].
[15] Mr Wilkinson-Smith did not suggest that the Judge’s discretion to allow the Crown to call further evidence did not extend to a misunderstanding between counsel. Indeed, in Francis the Court recognised that such a situation, as distinct from an oversight by the Crown, fell within the rare category where the discretion may be exercised outside the two settled exceptions. Nevertheless, Mr Wilkinson-Smith submitted that the Judge was wrong in fact; and that the Crown’s failure to call the additional evidence did not arise from or as a consequence of counsel’s misunderstanding. He said that, if there was a misunderstanding, it did not alter the way in which the Crown presented its case. In this way he sought to distinguish Francis.
[16] In support Mr Wilkinson-Smith relied on Mrs Wilkinson-Smith’s affidavit which he said was uncontradicted by the Crown. She acknowledged her advice to Ms Ryan just before the commencement of trial that ‘unfortunately, the chain of evidence appears to be fine’ and explained subsequent events as follows:

7. At the time I made that comment I believed that there were no gaps in the chain of evidence. I did not intend my comment to be taken as an indication that chain was consented but rather that I had found no problem in the chain of evidence.
8. The following day, 25 April 2006, was Anzac Day. I spoke to my client by telephone that evening. My client made a comment which made me realise that there was a gap in the chain of evidence. The items which had been seized from the prisoner’s vehicle, had been taken to the Howick Police Station. The items analysed by ESR had been forwarded from the Papakura Police Station and there was no evidence that items had been moved between Police Stations. There was also very little evidence about how the items seized had been labelled and secured.
9. I had not originally picked up the gap, probably because I took the trial up at late notice and had not registered the difference in the Police Stations. From my reading of the file it appears that neither of the previous counsel had seen the gap either.
10. When I did become aware of the gap I considered my comment to the Crown Prosecutor. I had not indicated that the chain was not an issue or said that the evidence was not required. I considered that it was still for the Crown Prosecutor to check the chain of evidence herself.
11. When the Crown Prosecutor opened to the jury I took careful note of her comments regarding chain of evidence. Had the prosecutor said that the chain of evidence was not an issue or that it was accepted by the accused, then I would have told her that all matters were in issue. In opening the prosecutor said that there was unlikely to be any argument about the chain of evidence but it was still something that the Crown must prove and the Crown would call witnesses to do so.

[17] This explanation does not assist us. If anything, it reinforces the criticism of defence counsel implicit in Winkelmann J’s decision: at [18]. Mrs Wilkinson-Smith’s statement to Ms Ryan on 24 April that "the chain of evidence appears to be fine" suggests an admission by defence counsel, upon which the Crown would be entitled to rely at face value, that Mr Timutimu accepted the existence of a chain of safe custody of the material between the dates of receipt and supply to the ESR, thereby dispensing with the need for strict proof. We are in no doubt that, in the circumstances narrated by Mrs Wilkinson-Smith, she was under an obligation immediately after hearing the Crown’s opening address to advise Ms Ryan unequivocally to the contrary. Mrs Wilkinson-Smith’s acknowledgement that receipt of Mr Timutimu’s instructions about the evidential gap after her discussion with Ms Ryan caused her to reconsider her position only serves to highlight the nature of her duty. We infer that by then Mrs Wilkinson-Smith had decided to take forensic advantage of what she must have known was at very least a state of confusion between counsel to which she had materially contributed.
[18] Mr Wilkinson-Smith attempted to circumvent the Judge’s finding, however, by reliance on Mrs Wilkinson-Smith’s further statement that:

14. During the adjournment [after the hearing of the s 347 application] the Crown Prosecutor told me that she simply had not seen the gap in the chain of evidence. She said to me that I had said the chain was all right but acknowledged it was no excuse and she should have still checked it.
15. I was not aware of anything said or done by the Crown that indicated that Crown evidence altered as a result of the comment I made about the chain of evidence. ...

[19] This statement was apparently designed to establish an oversight by Ms Ryan, thereby taking the case outside the purview of the Francis discretion. However, if Ms Ryan made such an admission, Mrs Wilkinson-Smith should properly have addressed it before Winkelmann J. No material was produced on appeal to suggest that Mrs Wilkinson-Smith did not raise this point with the Judge, who heard from both counsel.
[20] In any event, Winkelmann J must have accepted Ms Ryan’s advice that she would have pursued ‘a more rigorous approach to proof’ but for the misunderstanding. Her alleged concession that she had not identified the gap in the chain of custody evidence is consistent with the inference to be drawn from Mrs Wilkinson-Smith’s earlier admission that "the chain of evidence appears fine". We agree with Mr Thomas that, if Mrs Wilkinson-Smith had clarified the apparent misunderstanding with Ms Ryan immediately after her opening address, the Crown would have been left in no doubt that all elements of the chain of custody were at issue and would have led the additional evidence from the two witnesses when both were originally called.
[21] Thus, given our conclusion that Winkelmann J did not err in granting the Crown leave to re-open its case, it is unnecessary for us to deal with Mr Wilkinson-Smith’s consequential argument that the Judge’s decision caused a miscarriage of justice, other than to express our agreement with Mr Thomas that there was sufficient evidence of chain of safe custody of the drugs without the recalled evidence from which the jury could properly infer that the substance produced at trial was the substance taken from Mr Timutimu’s vehicle on 12 December 2004.

Decision

[22] Accordingly, for these reasons, Mr Timutimu’s appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	Turuwhenua Timutimu appeals against his conviction following trial before a Judge and jury in the High Court at Auckland on one count of possessing methamphetamine for supply.
[2]	Mr Timutimu’s counsel, Mr Wilkinson-Smith, who did not appear at trial, originally advanced two grounds in support of the appeal: first, that the verdict was against the weight of evidence and, second, that the trial Judge, Winkelmann J, wrongly allowed the Crown to call further evidence after it had closed its case. However, his oral argument focused primarily on the second argument.

[3]	The Crown case against Mr Timutimu was relatively straightforward. In the context of this appeal the evidence of two prosecution witnesses assumes importance. One was a police officer, Sergeant Simon Sherborne, who at about 3 am on 12 December 2004 stopped a car driven by Mr Timutimu. On searching the vehicle he found a number of small snaplock bags containing white crystal powder. He removed the bags to the Howick Police Station where he recorded and labelled the seized items. He weighed the packages and their contents together on a set of electronic scales found in the car. The aggregate weight was 6.6 grams.
[4]	Sergeant Sherborne secured the packages in the Howick Police Station later that morning. He gave them an exhibit number, 04/609, and stored them in drug exhibit envelope 05/010. A police officer photographed the exhibits at about midday.
[5]	The second material prosecution witness was Ms Kathleen Antunovich, a property officer employed by the New Zealand Police. Her brief was read by consent. She collected the drug envelope 05/010 from a locked drug store at the Papakura Police Station on 7 January 2005. She confirmed that the envelope was labelled with Mr Timutimu’s name.
[6]	Later that day Ms Antunovich delivered the envelope to a scientist employed by the Institute of Environmental Science and Research Ltd in Mt Albert. The scientist issued a certificate confirming the existence of seven self-sealing plastic bags in the envelope, each containing white crystalline powder which she analysed as methamphetamine. The total weight of the powder, without the bags, was certified as 4.3 grams.
[7]	At the conclusion of the Crown case Mr Timutimu’s then counsel, Mrs Michele Wilkinson-Smith, applied for an order discharging him from trial: s 347 Crimes Act 1961. Winkelmann J recorded that:

[11]	In oral argument Mr Wilkinson-Smith acknowledged that the real challenge to Mr Timutimu’s conviction lay against Winkelmann J’s decision to allow the Crown to re-open its case and recall two further witnesses. In addition to the record he tendered and relied upon an affidavit sworn by Mrs Wilkinson-Smith. He acknowledged that the Judge’s decision was made in exercise of a discretionary power. He submitted, however, that the decision was wrong because Winkelmann J was not then fully acquainted with the relevant facts.
[12]	In allowing the Crown’s application, Winkelmann J acknowledged the general principle that all evidentiary material to be relied upon by the prosecution probative of guilt must be adduced before the close of its case: R v Lee [1976] 2 NZLR 171 (CA). Its rationale is fairness to the accused, so that he or she has an adequate opportunity to know the Crown case and plan a defence accordingly: R v Chin [1985] HCA 35; (1985) 157 CLR 671. Nevertheless, the Court has an inherent jurisdiction to allow the Crown to call further evidence at a later stage. The discretion is to be used sparingly and in such a way as to strike the appropriate balance of justice between the Crown and the defence. The two recognised categories of exception are, first, situations involving purely formal issues and, second, where issues have arisen unforeseeably or ex improviso. The discretion will be exercised rarely outside these two exceptions: R v Francis (1990) 91 Cr App R 271 at 275 - 276.
[13]	Winkelmann J then identified six principles which govern the relevant discretion. Among them are the degree of prejudice to the defence, the reason for failing to call the evidence at the proper time, and that the evidence is more likely to be admitted where its omission was of a mere formality, in contrast to a central issue in the case. The Judge heard from both Ms Ryan and Mrs Wilkinson-Smith. She found that the Crown’s failure to call the subject evidence arose from a misunderstanding between them as follows:

[14]	Winkelmann J relied on two additional factors. One was that the Crown had only just closed its case; the other was that the subject evidence ‘could hardly be characterised as relating to the central issue in the case’: at [17]. Ultimately, and importantly, she was satisfied that justice would not be done if Mr Timutimu was acquitted as a result of the misunderstanding: at [19].
[15]	Mr Wilkinson-Smith did not suggest that the Judge’s discretion to allow the Crown to call further evidence did not extend to a misunderstanding between counsel. Indeed, in Francis the Court recognised that such a situation, as distinct from an oversight by the Crown, fell within the rare category where the discretion may be exercised outside the two settled exceptions. Nevertheless, Mr Wilkinson-Smith submitted that the Judge was wrong in fact; and that the Crown’s failure to call the additional evidence did not arise from or as a consequence of counsel’s misunderstanding. He said that, if there was a misunderstanding, it did not alter the way in which the Crown presented its case. In this way he sought to distinguish Francis.
[16]	In support Mr Wilkinson-Smith relied on Mrs Wilkinson-Smith’s affidavit which he said was uncontradicted by the Crown. She acknowledged her advice to Ms Ryan just before the commencement of trial that ‘unfortunately, the chain of evidence appears to be fine’ and explained subsequent events as follows:

[19]	This statement was apparently designed to establish an oversight by Ms Ryan, thereby taking the case outside the purview of the Francis discretion. However, if Ms Ryan made such an admission, Mrs Wilkinson-Smith should properly have addressed it before Winkelmann J. No material was produced on appeal to suggest that Mrs Wilkinson-Smith did not raise this point with the Judge, who heard from both counsel.
[20]	In any event, Winkelmann J must have accepted Ms Ryan’s advice that she would have pursued ‘a more rigorous approach to proof’ but for the misunderstanding. Her alleged concession that she had not identified the gap in the chain of custody evidence is consistent with the inference to be drawn from Mrs Wilkinson-Smith’s earlier admission that "the chain of evidence appears fine". We agree with Mr Thomas that, if Mrs Wilkinson-Smith had clarified the apparent misunderstanding with Ms Ryan immediately after her opening address, the Crown would have been left in no doubt that all elements of the chain of custody were at issue and would have led the additional evidence from the two witnesses when both were originally called.
[21]	Thus, given our conclusion that Winkelmann J did not err in granting the Crown leave to re-open its case, it is unnecessary for us to deal with Mr Wilkinson-Smith’s consequential argument that the Judge’s decision caused a miscarriage of justice, other than to express our agreement with Mr Thomas that there was sufficient evidence of chain of safe custody of the drugs without the recalled evidence from which the jury could properly infer that the substance produced at trial was the substance taken from Mr Timutimu’s vehicle on 12 December 2004.