The Queen v Gillies [2006] NZCA 50 (28 March 2006)

Last Updated: 21 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA252/05

THE QUEEN



v



JOHN WHAREMAKO GILLIES

Hearing: 9 March 2006

Court: Robertson, Wild and Venning JJ

Counsel: N Levy for the Appellant
B J Horsley for the Crown

Judgment: 28 March 2006

JUDGMENT OF THE COURT

A The appeal on the four grounds argued is dismissed.

B The ground of appeal alleging a misdirection on the presumption under s 6(6) Misuse of Drugs Act 1975 is adjourned to 15 May 2006.

REASONS

(Given by Wild J)

Introduction

[1]	By notice filed on 27 July 2005 the appellant appeals against his conviction on a number of charges following trial before Miller J in the High Court at Napier between 16 and 18 May 2005. The appellant was convicted of the following four charges:

(a) Possession of cocaine for supply;

(b) Possession of methamphetamine for supply;

(c) Aggravated assault; and

(d) Assaulting a Police Officer.

[2]	Five grounds of appeal are pursued:

(a) Change of venue: Failure of the appellant’s trial counsel to apply for a change of venue gave rise to a possible miscarriage of justice;
(b) Refusal of name suppression: Miller J’s refusal to grant name suppression for a proposed defence witness, who would not otherwise give evidence, gave rise to a possible miscarriage of justice;
(c) Error by Judge in directing on the presumption under s 6(6) Misuse of Drugs Act 1975: Miller J erred in not directing the jury that the presumption under s 6(6) Misuse of Drugs Act meant that the appellant needed only to raise a reasonable doubt as to the existence of the prescribed purpose in order to be acquitted;
(d) Misdirection on possession for supply: Miller J erred in directing the jury that the appellant’s possession of drugs for supply to a friend was possession for supply within the meaning of s 6(1) of the Misuse of Drugs Act; and
(e) Misdirection by Judge on appellant giving evidence and lies: Errors in Miller J’s summing up as to the effect of the appellant giving evidence, and about the lies he allegedly told in doing so, gave rise to a possible miscarriage of justice.

Factual background

[3]

A Police Officer noticed the appellant driving fast and erratically on State Highway 2 near Pukehou in Hawkes Bay on the morning of 29 May 2004. The appellant was travelling at 145 kilometres per hour in a 100 kilometre per hour area. After a high speed chase during which the appellant’s driving endangered numerous other vehicles on the road, both oncoming traffic and vehicles the appellant overtook, the Police managed to stop the appellant near Waipawa. Only with the assistance of a passing truck driver did two Police constables eventually manage to subdue the appellant who continued struggling and resisting even after he had been handcuffed and placed in a Police car.

[4]

After arresting the appellant the Police searched his vehicle, which had been brought back to the Police Station. In it they found drugs and paraphernalia consistent with drug dealing. This included 10.5 grams of cocaine and 1.3 grams of methamphetamine packaged for sale, several sets of electronic digital scales and $21,060 neatly bundled with coloured rubber bands into wads of $1,000 and separated into two bundles, each of $10,000.

The Crown and defence cases at trial

[5]	The Crown case was that the appellant was dealing both in methamphetamine and in cocaine, and had been caught "red-handed" with those drugs, the paraphernalia for dealing in them and a large amount of cash relating to his drug dealing.
[6]	The Crown contended that the appellant’s explanation, as outlined in the next paragraph, was a "pack of lies". There had been no theft of the drugs, nor was there any mate of the appellant who had been an accomplice in that theft.
[7]	The defence case was that the appellant and a "mate" had, some 20 minutes before the appellant was apprehended, stolen from a drug dealer both the drugs and the drug paraphernalia which were found in the appellant’s possession. The defence case was that the mate had gone "to get rid of something" and that the two of them were to meet up later to divide the proceeds of the theft. The appellant’s evidence was that he was going to retain the drugs for his own use and his mate was going to take the cash. The appellant claimed – and the Crown did not dispute – that he was a drug addict.

The operation of the presumption under s 6(6) Misuse of Drugs Act

[8]

The 10.5 grams of cocaine found in the appellant’s possession brought into operation the presumption under s 6(6) of the Misuse of Drugs Act, that the appellant had the cocaine for the purposes of supply. However, the same presumption did not operate in respect of the 1.3 grams of methamphetamine found in the appellant’s possession.

Change of venue

[9]

Ms Levy based this ground of appeal on the judgment of Harrison J delivered in the High Court at Napier on 9 August 2005 (R v Gillies HC NAP CRI 2005 041 325 9 August 2005). There an order was made that the venue for a forthcoming trial of the appellant on charges of sexual violation by rape and digital penetration and of abduction be changed from Napier to Wellington. Harrison J set out the factual background for that ruling in the following paragraphs of his judgment:

[6] Mr Gillies’ background circumstances are not in dispute. He is a career criminal. He is 34 years of age. His criminal record sheets cover 12 pages of computer printout. He came to national attention in 1995. He stabbed a police officer in Gisborne, leaving him permanently and partially disabled. His conduct was the subject of widespread and prolonged publicity. Among other things, prominence was given to a distinctive bulldog tattoo on his cheek and his membership of the Mongrel Mob gang.
[7] All of Mr Gillies’ recent offending has occurred in the Hawkes Bay area. Mr Snell focuses on two events. In November 2004 Mr Gillies was charged with two counts of assault on a child. He pleaded guilty. Intensive local publicity accompanied the process of his entry of a plea and sentencing over a period of some weeks. The front page of a local newspaper described him as "one of Hawkes Bay’s notorious criminals".
[8] Then, following his release from prison, Mr Gillies was tried in this Court in April 2005 on charges of possessing methamphetamine and cocaine for supply, aggravated assault, and assault on police. Mr Collins advises from the bar that Mr Gillies’ then counsel did not apply for an order for change of venue. However, his inactivity on that occasion is not a disqualification today.
[9] Again that trial attracted a good deal of publicity, both local and national. Mr Collins advises that Mr Gillies was the subject of television coverage by the major channels. They featured nightly bulletins on the progress of the trial. Mr Gillies was found guilty, convicted and sentenced to a term of seven years imprisonment. Contemporaneously the Parole Board recalled him to serve the balance of an 11 year term of imprisonment. All this publicity focused on Mr Gillies’ violent propensities, both past and present.

[10]	Perhaps because the last two of those paragraphs refer to the trial with which this appeal is concerned, Ms Levy sought to focus our attention on [6] and [7], and particularly on the local publicity referred to at the end of [7]. Ms Levy also made the point that, whilst it was the complainant’s credibility that would be the issue in the sexual violation trial that Harrison J was concerned with, in the present case the important issue for the jury was the appellant’s credibility in relation to his evidence explaining his possession of the drugs.
[11]	For five reasons we hold against this ground of appeal. First, the 1995 stabbing of a police officer (to which Harrison J refers in [6] of his judgment) was in Gisborne not Napier. Ms Levy was inclined to accept that that stabbing was too long past to affect the issue of venue when the appellant was tried before Miller J in May 2005. A further point was that Harrison J noted that the Gisborne stabbing attracted national publicity. A change of venue away from Napier would not counter national publicity.
[12]	Secondly, Harrison J was obviously much influenced by the publicity generated by the trial with which this appeal is concerned, in particular by the coverage of it carried on the major TV channels. Although that, again, was national publicity, Harrison J took the view that the publicity attracted, for the appellant, particular notoriety in the Hawkes Bay region where his offending had occurred. Harrison J expressed his view in this way:

[12] ... Taking all factors into account I am satisfied that Mr Gillies is particularly notorious in this region and that a substantial number of potential jurors will know of him and his past. The same risk would not prevail in Wellington, for example, where Mr Gillies has not been subjected to a sustained local publicity campaign and relatively few potential jurors are likely to know of him or his past. It is simply a case where weight of numbers in a larger region will diffuse the effect of earlier adverse publicity.

[13]	Thirdly, we have no evidence or indication that any of the jury panel in the trial to which this appeal relates sought to be excused because they knew the appellant or knew of him.
[14]	Fourthly, counsel for the appellant did not, at any stage, apply for a change of venue. We have no evidence as to whether trial counsel raised the issue with the appellant and, if he did, as to what the appellant’s instruction to trial counsel was. Any instruction not to raise the issue of a change of venue would, of course, be fatal to this ground of appeal.
[15]	Finally, as this Court has on many occasions emphasised, the threshold that must be crossed by an applicant for a change of venue is set deliberately high. That stems from the fundamental principle that an accused should be tried by his fellow citizens in the community in which he allegedly offended. In our view the appellant, even had he applied before trial for a change of venue, would not have come near discharging that high threshold.
[16]	In her oral submissions Ms Levy widened this ground of appeal to encompass a submission that Miller J ought, of his own volition, to have directed a change of venue under s 322(1) of the Crimes Act 1961. Whilst we accept that a Judge can initiate consideration of a change of venue, we are not aware of any case in which a Judge has done so and Ms Levy was not able to direct us to any such authority. It is difficult to conceive of any trial Judge ordering that the accused be tried elsewhere against the wishes of the accused, and we have already made the point that we have no evidence as to Mr Gillies’ wishes here, if indeed the possibility of a change of venue was even raised with him. Ms Levy accepted that it is normally (we think invariably) trial counsel who will seek a change of venue. She submitted that trial counsel, who was from ‘out of town’, was or may not have been alive to the appellant’s local notoriety. We have no evidence about that. If it was the position, then we would expect to have had evidence about it.
[17]	For those reasons we are satisfied that there is no reasonable possibility that a miscarriage of justice resulted from the fact that the appellant was tried in Napier. The first ground of appeal fails and we dismiss it.

Refusal of name suppression

[18]	This ground challenges Miller J’s refusal to grant name suppression to Ms Moana Hutana, a former partner of the appellant. The appellant proposed to call Ms Hutana to give evidence about his addiction to methamphetamine, but asked the Judge to suppress her name.
[19]	After hearing from Ms Hutana in Chambers, Miller J declined to suppress Ms Hutana’s name. In his Ruling No. 5 he noted that Ms Hutana had explained that she was concerned about publicity for two reasons. First, it might affect her job as a massage therapist at a gymnasium. Secondly, on a previous occasion when she had given evidence for the appellant, she felt that the media had, in reporting her evidence, unfairly impugned her character.
[20]	Miller J ruled that those were not sufficient grounds for suppressing her name, and that the risk of misreporting was one that must be borne. The power under s 140 of the Criminal Justice Act 1985 to suppress a witness’s name is a discretionary one. As Ms Levy acknowledged, the starting point in exercising a discretion is always the importance of open judicial proceedings, and the right of the media to report fairly and accurately as ‘surrogates’ of the public: R v Liddell [1995] 1 NZLR 538 (CA). Although Miller J did not expressly refer to Liddell, his ruling clearly balances the concerns expressed to him in Chambers by Ms Hutana against the Liddell principle. We do not regard Miller J’s exercise of his discretion as wrong.
[21]	Miller J concluded his Ruling No. 5 with this passage:

[4] Following that ruling, Ms Hutana indicated she was not prepared to give evidence, and Mr Tennet advised me that his instructions were not to call her against her will.

[22]

As Mr Horsley pointed out, this records a deliberate choice by the appellant not to summons Ms Hutana. There is no suggestion from Ms Hutana that she would not have answered a summons, and none that she would not have given her evidence honestly and openly if summonsed.

[23]

In any event we cannot see how Ms Hutana’s proposed evidence would have advanced the defence case. The appellant admitted being in possession of the drugs, but claimed that he had just stolen them and would be retaining them for his own personal use. There was no challenge in cross-examination to the appellant’s evidence that he was a drug addict. When closing to the jury, the Crown Prosecutor expressly accepted that the appellant was a drug addict "on a daily basis". Further, as Mr Horsley also pointed out, it is not clear from the information available to us whether Ms Hutana’s evidence would be about the appellant’s past drug addiction, or about the up-to-date position. All we know is that she was a former partner of the appellant. Quite apart from the other obstacles standing in the way of this ground of appeal, we cannot see that the fact that Ms Hutana did not give evidence could possibly have resulted in a miscarriage of justice. This second ground of appeal fails and is dismissed.

Error by Judge in directing on the presumption under s 6(6) Misuse of Drugs Act 1975

[24]	Success on this issue depends on the Supreme Court reversing this Court’s decision in R v Hansen CA128/05 29 August 2005, which followed its earlier decision in R v Phillips [1991] 3 NZLR 175. Having earlier given leave, the Supreme Court heard the appeal from Hansen on 22 February 2006, and has reserved its judgment.
[25]	Counsel were agreed that this ground of appeal could not now succeed in this Court, and should be reserved to the appellant to pursue if appropriate following delivery of judgment by the Supreme Court.
[26]	We accordingly adjourn this ground of appeal. It will be relisted for mention on 15 May 2006 at 10.00 a.m. and will then be dealt with in light of the Supreme Court judgment if it is then available.

Misdirection on possession for supply

[27]	Miller J directed the jury in the following terms:

[32] Supplying means transferring physical control of the drug to another person for that other person’s benefit. It includes distributing or giving the drug as well as selling it. If he intended to give some of the drugs to his mate or share them with his mate, then that would be supply in law. (our emphasis)

[28]	Ms Levy submitted that the sentence we have emphasised was a misdirection, as the appellant was a mere custodian of his mate’s share of the drugs. Thus, if his intention was merely to hand to his mate the mate’s share of the drugs, he cannot have had the purpose of supplying.
[29]	This submission was founded on R v Adams (2004) 21 CRNZ 204, incidentally also a ruling of Miller J.
[30]	There is conflicting authority as to whether a custodian in unlawful possession of controlled drugs can "supply" those drugs to their owner. Relevant authorities are discussed by Miller J in Adams, with the exception of this Court’s decision in R v Hooker [1998] 3 NZLR 562. In Hooker this Court appears to have considered that transfers between co-owners could amount to "supply", whilst not necessarily constituting "sale" for the purposes of the Misuse of Drugs Act.
[31]	We do not need to resolve any possible conflict as we accept the Crown’s submission that the appellant’s case was never put to the jury on the basis that he was a custodian of the drugs – or a share of the drugs – for his mate.
[32]	The appellant’s relevant evidence (and, significantly, all this evidence was elicited under cross-examination) was:

Q. So how much of the drugs and the money did your mate get?
A. Like I said we were gonna meet up later and um, you know sort it out.
Q. So you were going to give him some of the cocaine and methamphetamine later?
A. Well we had talked about the cash cos he didn’t use the drugs.
Q. You just said you were going to meet up later and divide it up?
A. Divide it up, the cash, he doesn’t use drugs so I was gonna get all the drugs, he just wanted the money.

[33]	And, later:

Q. Well if you are such a big meth user at this time, back on 29 May 2004, and you were using by injecting, where was your meth and where were your needles?
A. I didn’t have any meth, me and my mate dealt to the last of our meth that morning, no money and no more meth, that’s why we went out to get some. He had you know, he had – yeah.

[34]

We accept that, in that latter passage, the appellant changed his story, suggesting that his mate was a "meth" user as well. However, in his closing address to the jury, defence counsel made it clear that the appellant’s case was that the drugs found in his car were for his personal use. These are the relevant passages of defence counsel’s address to the jury:

... So a third person there mentioned by Mr Gillies at the end and is the guy who he went and did the robbery with, he was going to split the cash, keep the drugs as his share.

And later:

... And really I suggest to you that he establishes that he had that for his own use, he had taken it. A man who injects daily or likes to inject daily, injects some methamphetamine and some drugs he thinks are methamphetamine too (inaudible) he’s not going to be selling them on is he he’s not going to be supplying others he’s going to be keeping them for himself.

[35]	There was no suggestion in what defence counsel said to the jury that there was to be a sharing of the drugs by the appellant with this mate.
[36]	That, also, is the way Miller J summed up the defence case to the jury. The relevant parts of the summing up are:

There are a number of points for the defence.
... He (Mr Gillies) says he wanted it for his own use; ... Mr Gillies told you he is an addict who used up to half a gram a day; the methamphetamine pipe in his own bag had been used, suggesting that it was his;... he may well have been a user and Mr Tennet pointed out that the lighters also suggest a user; ... one of the sets of scales was in his own bag but that is something that the defence says a user might have to check he was not being cheated; ... Mr Gillies’ explanation that he had what he thought was methamphetamine and he intended it for his own use, and the other defence points that I have mentioned.

[37]

It was not the defence case that the appellant and his mate were co-owners of the drugs which the Police found in the appellant’s possession. What Miller J said could not be a misdirection. The highest it could be put for the appellant, is that Miller J’s direction was an unnecessary one, as it dealt with an aspect of the appellant’s evidence which the defence abandoned in putting its case to the jury in its final address. Even if that were so, the direction did not give rise to any possibility of a miscarriage of justice. This fifth ground of appeal fails and is dismissed.

Misdirection by Judge on appellant giving evidence and lies

[38]	Ms Levy pointed out that consideration of this ground was only necessary if the previous ground failed. It has and, therefore, we deal with this final issue.
[39]	Ms Levy submitted that both the Crown’s final address and the Judge’s summing up, on the effects of the presumption and the accused giving evidence, and as to lies, were confusing, unhelpful and wrong on the two situations which arose. As they were put to the jury by the parties, those two situations were:

(a) Crown case: The Crown case was that the appellant had been caught red-handed dealing in both methamphetamine and cocaine. Ms Levy contended the Crown, in its closing address, had told the jury it could only return verdicts of not guilty if it found that the appellant intended to keep all the drugs for his own use, not even sharing some of them with his mate. The Crown had urged the jury to reject the appellant’s explanation that he and a mate had just stolen the drugs and the dealing paraphernalia from a dealer as a pack of lies.
(b) Defence case: The defence case was that the appellant and a mate had just stolen the drugs from a dealer. The appellant was going to keep all the drugs for his own personal use. His mate was going to get the cash they had stolen. (Ms Levy accepted that the appellant had later given contradictory evidence about sharing the drugs with his mate.)

[40]	Ms Levy submitted that the Crown closing was deficient in two respects. First, it failed to draw a distinction between count 1, the cocaine, where the presumption applied and count 2, the methamphetamine, where it did not. Secondly, it failed to capture the third limb of the tripartite direction considered by the Supreme Court in Siloata v R (2004) 21 CRNZ 426, in contending that the jury must find the appellant guilty even if it believed his account "might be correct", that is, if they had a reasonable doubt.
[41]	Ms Levy pointed out that Miller J’s Siloata-style tripartite direction, as to the effect of the appellant giving evidence, was in that part of his summing up dealing with counts 1 and 2, and the presumption that applied in respect of the cocaine but not the methamphetamine. As well as submitting that the Judge’s Siloata direction was inappropriately positioned, Ms Levy argued that it was erroneous in failing to distinguish between the defence case and the appellant’s evidence. The defence case was that the appellant was an addicted drug user in possession for his own use. By contrast, the appellant, in the course of giving what Ms Levy accepted was a "complicated and confused explanation", had at one point said that he was going to share the drugs with his mate.
[42]	Ms Levy then submitted that Miller J’s further directions as to the effect of the accused giving evidence ([78] onward) were defective in two respects. First, the Judge wrongly said that the Crown case was "that the lies are evidence of guilt". Secondly, the Judge failed to give the jury a proper ‘Toia’ direction without reference to lies, but with specific reference to the effect of the jury rejecting the appellant’s evidence on the two different supply counts. Even where the presumption applies (on count 1, the cocaine) guilt is not shackled to the credibility of the accused.
[43]	Ms Levy submitted that the jury could well have found that the appellant’s account about stealing the drugs was an untruthful attempt to bolster a true defence of possession for personal use. She argued that Miller J never directed the jury that, if they rejected the appellant’s evidence as lies, then they needed to go back to the evidence of Crown witnesses and decide whether possession for supply is proved beyond reasonable doubt.
[44]	Mr Horsley submitted that the Crown’s closing and Miller J’s summing up were accurate as to the burden of proof, the elements the Crown needed to satisfy and the effect of the accused giving evidence.
[45]	He rejected the criticisms of the Crown closing, in particular pointing out that the Crown prosecutor, Mr Collins, had said:

If you take the view that he has told a pack of lies, and the Crown says that he has here, you will nevertheless, you won’t convict him on that, it will do nothing at all for his credibility and why you would believe him on anything, but nevertheless come back to the Crown case because in this case really, if we stand back and apply what my friend urges us to apply is our commonsense, isn’t this just simply a case of serious offending, a serious case of a man being caught red-handed. That’s what it is.

[46]	Mr Horsley also pointed out that the prosecution had set out in detail the aspects of what the Crown submitted was its very strong case against the appellant.
[47]	Mr Horsley contended that the attempted distinction between the accused’s explanation and the defence case was illusory, because the latter depended on the former and they were one and the same thing.
[48]	Mr Horsley also maintained that Ms Levy’s criticisms of Miller J’s summing up were not justified. In particular, he submitted that Miller J had:

(a) At [83] of the summing up, specifically directed the jury that, if they rejected the accused’s explanation as lies, then they must go back to the rest of the evidence and ask themselves whether it satisfied them that the appellant intended to sell the drugs.
(b) Carefully directed the jury that if they found the appellant was lying it went only to the credibility of his explanation, at no stage suggesting that it was proof of guilt. Indeed, the Judge was careful to direct the jury that the one did not follow from the other, and he explained why.
(c) Drawn a distinction between the cocaine and methamphetamine counts, because the presumption applied to the one but not the other.

[49]	Mr Horsley also drew attention to the Judge’s "decision tree" which was distributed to the jury, submitting it was a logical and accurate reference point for the jury in its deliberations.
[50]	We reject the contention that Miller J’s Siloata direction (at [41] of his summing up) was in the wrong place and was erroneous. Miller J was at that point dealing with the requirement for the Crown to prove that the accused was in possession of the methamphetamine and cocaine for the purpose of supply. He had gone through the three things the Crown needed to prove. At [38] he said that if the Crown proved those three things, it had the benefit of the presumption on count 1 – the cocaine. At [39] he said that the defence could rebut that presumption by calling evidence. He then outlined what that evidence must prove, and to what standard. It was at that point that he gave the Siloata direction. Miller J then repeated, at [42], that the presumption did not apply to methamphetamine. The Crown had to prove beyond reasonable doubt that the appellant had methamphetamine for the purposes of supply. And he referred to the decision tree which he had given the jury.
[51]	We are not persuaded that any distinction between the defence case and the appellant’s evidence, which Ms Levy advanced before us, would have affected the jury in their assessment of the critical matter. The defence case depended on the accused’s evidence. Without that evidence there was no basis for it although we accept that defence counsel could urge, for example, that even drug users have sets of scales to ensure they are not "ripped off" by dealers.
[52]	We do not accept that Miller J failed to direct the jury that, if they rejected the appellant’s evidence as lies, they needed to go back to the Crown evidence and decide whether the Crown had proved its case. We think Miller J did this perfectly adequately in [78]-[87] of his summing up. In particular, there is a more than adequate caution to the jury about lies. As to the methamphetamine, Miller J directed the jury that if they decided the appellant was lying about not having the drugs for supply, they must not simply assume that he must have intended to sell it. The Judge said:

[83] ... Those are not the same thing. What you have to do in that case is to ask yourselves whether the evidence as a whole satisfies you that he intended to sell it.

[53]	Miller J then dealt specifically with the cocaine, directing the jury that if they rejected the accused’s explanation for having that in his possession, then it would follow that he had not discharged the burden resting on him of proving that he had it for another purpose, and a verdict of guilty must follow. In other words, the Crown on that count had the benefit of the presumption.
[54]	This ground of appeal is also dismissed.

Result

[55]	The appellant has not succeeded on any of the four grounds of appeal argued. The appeal, insofar as it rests on those grounds, is accordingly dismissed.
[56]	Appeal ground (c) is adjourned to 15 May 2006.

Solicitors:
Crown Law Office, Wellington