The Queen v Timmings and Timmings [2008] NZCA 121 (8 May 2008)

Last Updated: 17 May 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA620/07CA621/07 [2008] NZCA 121THE QUEEN

v

PAUL COLLINGWOOD TIMMINGSCATHERINE MARY TIMMINGS

Hearing: 17 April 2008

Court: Hammond, Williams and MacKenzie JJ

Counsel: P G Mabey QC for Appellants
F E Guy Kidd for Crown

Judgment: 8 May 2008 at 10 am

JUDGMENT OF THE COURT

The appeals are dismissed.

REASONS OF THE COURT

(Given by MacKenzie J)

Background

[1] The appellants faced trial in the High Court at Hamilton on one count of possession of pre-cursor substances with the intent that they be used for manufacturing methamphetamine, one count of possession of materials with the intent that they be used for manufacturing methamphetamine, one count of attempted manufacture of methamphetamine and a further count of possession of pre-cursor substances with intent that they be used for manufacturing methamphetamine. They were convicted on the first two counts, and acquitted on the last two counts.
[2] The appellants are husband and wife and live at a Hamilton rural property. The property was searched on 3 March 2006. Items were found in and about the house and garage, and adjacent to the property, just over the boundary fence. Counts 1 and 2 related to items found in or near the house and garage; counts 3 and 4 related to items found over the boundary. The appellants denied possession of any of the materials or chemicals with the intent that they be used for the manufacture of methamphetamine and denied attempting to manufacture. The defence called evidence. A friend of the appellants, Mr Andrew, gave evidence that before the search he had been baby sitting for the appellants one evening when a male visitor arrived wanting to speak to Mr Timmings. He asked if he could leave something behind at the property and pick it up a little later on. Mr Andrew said that he saw him take a knapsack or some sort of rucksack and some plastic shopping bags out of the boot of his car. He saw him put the items taken from the car down beside the pool area. Mr Andrew said that after the visitor had left he moved these items, putting some bags over the boundary fence, and later putting another item in a pot plant alongside the house. Mrs Timmings also gave evidence. She said that several of the items found in the house were for ordinary household use, and, as to other items, she said that she saw a number of items outside by the pool and took them into the kitchen.
[3] The trial commenced on 11 September 2007 after an earlier trial started the previous day had to be abandoned. The jury retired at 12.35pm on Thursday 13 September. At 5.40pm, the jury sent out two notes indicating that for Mrs Timmings they were agreed she was not guilty on count 3, but not agreed on the other three counts, and that for Mr Timmings they did not agree on any of the four counts. Wild J, the trial judge, had the jury return and in open court asked them whether, on the counts which they were not agreed, that meant that they were not agreed at the moment but may be able to reach agreement, or did it mean that they were deadlocked. The foreman said that “it does feel like a deadlock”. At that stage, the judge gave the following direction:

Well, I would like to make one or two comments to you, if that’s the position. You have been deliberating now for five hours, and I want to stress to you the importance of your trying to reach verdicts at the end of this trial, and that’s for a reason which you may or may not be aware of. It is that, if you don’t, the case will probably have to be tried again, and that puts a tremendous burden on everyone involved: the two accused in this trial; the witnesses (the Crown witnesses are Police Officers, so you don’t have to worry too much about them, but there is of course the defence witness and Mrs Timmings would again, I assume, give evidence).

Now each of the 11 of you has taken a solemn oath, or affirmation, that you will try this case to the best of your ability, and it is most important that you discharge that responsibility and don’t pass it over to another jury. As I said to you when I summed up, the 11 of you are the representatives of the Waikato community here, and you have got a responsibility to your community to try and reach collective verdicts, the verdicts of the 11 of you. The operation of our system of justice depends on juries such as you doing that.

One of the strengths of our jury system is at the same time one of its challenges. The strength is that each of you brings to your deliberations your own experience, your own perspective of life. The difficulty is that the 11 of you must be unanimous, and that is obviously causing problems for you. In order to achieve unanimity there must necessarily be exchanges of views and ideas. There is scope for a certain amount of give and take within your oath as a juror, and you are expected to pool your views of the evidence.

You have a duty to listen carefully to what the others are saying. Remember that a view honestly held can equally honestly be changed after free discussion and persuasion from other jurors. And that is often the way in which unanimous verdicts are reached.

I do add that none of you should be false to the oath or affirmation that you have taken as a juror. None of you should alter the view that you honestly hold for the sake of reaching agreement or to avoid inconvenience. And if, Mr Foreman and members of the jury, if in the end you cannot honestly agree after trying to look at this case objectively and calmly, and weighing the opinions of each other, then you must say so. If that is the final position, then I will discharge you in relation to the counts on which you cannot agree, and in all probability there will be a new trial on those counts before another jury.

In view of all that, I wonder please if I could ask you to retire and deliberate further. We have organised dinner for you at around 6 pm so that will give you a welcome break. Please bear in mind what I have said to you, and continue on with your deliberations. Mr Foreman, if you cannot make progress, if you reach the point where you are just deadlocked, then please let me know and I will deal with that situation.

[4] The jury retired again at 5.45pm. They were taken to a restaurant for dinner between 6 and 7pm, and returned with verdicts at 7.45pm.
[5] Two grounds are raised in support of the appeal:

(a) That there has been a miscarriage of justice arising from the Papadopoulos direction given by Wild J; and

(b) That the verdicts are inconsistent.

Inconsistent Verdicts

[6] It is convenient first to deal with the issue of inconsistent verdicts. Mr Mabey QC submits that the not guilty verdict on counts 3 and 4 in relation to items over the boundary fence show at least that the defence raised a doubt. He submits that the same doubt must consistently flow through to counts 1 and 2 and that there is no logical explanation for the differential. Counsel for the Crown submits that there is nothing inconsistent in the verdicts and that they are understandable. Counsel submits that it is likely that the jury did not accept the evidence of Mr Andrew and put that to one side and then considered the Crown case. She submits that even on the Crown case there was a problem of proving possession of the bags located on the neighbouring property, because there was no direct evidence linking those bags and their contents to the appellants. On counts 1 and 2 the items subject to the charges were found in the kitchen, garage, and swimming pool area, and in the case of the iodine in a pot plant near the house. Mrs Timmings admitted possession of the pre-cursor substances in the kitchen but claimed they had innocent uses, and her explanation concerning the items she said she had taken inside needed to be seen against a background of evidence that Mr Timmings was a methamphetamine user and that Mrs Timmings had previously used methamphetamine but had stopped some two years prior.
[7] We do not consider that the verdicts are inconsistent. There were a number of possibilities open to the jury. The jury might not have accepted Mrs Timmings’ evidence about the innocent explanation which she gave for some of the items in counts 1 and 2, or her evidence, inherently implausible, that she had taken items from the pool area into the kitchen in the circumstances which she described. If her evidence was rejected, the guilty verdicts on counts 1 and 2 are readily explicable on the Crown evidence. Although Mr Andrew’s evidence was inherently implausible, the jury may have accepted that as raising a reasonable doubt about the items found over the boundary fence (counts 3 and 4) and the iodine in the pot plant (one of the materials involved in count 2). Another possibility is that the jury might have rejected the evidence of both Mrs Timmings and Mr Andrew. Had they done so, it was not necessarily inconsistent for the jury to take the view that possession of the items in and adjacent to the house (which would have been sufficient to prove counts 1 and 2) could, to the necessary standard of proof, be attributed to the appellants, but that possession of the items over the boundary (necessary for counts 3 and 4) could not. This ground of appeal must fail.

Papadopoulos direction

[8] The next ground of appeal is related to the Papadopoulos direction. Mr Mabey submits that the direction should not have been given in the form that it was, and that there is a real risk that the direction has produced a compromise verdict.
[9] The particular part of the direction to which exception is taken is the first paragraph. The objection relates to the reference to the possibility of a retrial putting “a tremendous burden” on all involved, including the accused and witnesses. It is submitted that the direction should not have been given, in circumstances where the jury had not requested assistance, but had indicated a deadlock.
[10] The giving of a direction to a jury which has indicated that it is unable to agree is a sensitive area. It calls for an assessment by the trial judge of the circumstances, to determine whether the case is one in which a direction should be given or not. It also calls for particular care in the form of the direction which is given. The relevant principles were restated by this Court in R v George [1984] 1 NZLR 272 in these terms (at 279):

(i) Care should always be taken to avoid creating any impression that the jury are being hurried into a verdict.

(ii) If a jury are having difficulty in achieving unanimity, a direction in open Court on the lines approved in R v Papadopoulos [1979] 1 NZLR 621 may be given by the Judge if he sees fit. Reference should not be made to "consensus": R v Patterson [1980] 2 NZLR 97.

...

(vii) In no circumstances should anything in the nature of a time limit be imposed on the jury. If the Judge thinks it right to refer to the possibility of discharging them without a verdict, he may do so, provided that it is said in open Court and anything savouring of a definite time limit is avoided.

[11] In R v Accused (CA87/88) [1988] 2 NZLR 46, this Court set out a model form of direction. Whether the direction is given, and the form in which it is given, remain matters which are within the discretion of the trial judge. There is no requirement of law that a direction must take the exact form recommended by the Court in R v Accused. However, there are dangers in departing from, or in adding to, the standard direction. In R v Eshaya CA107/00 5 July 2000, the judge had referred to the jury doing their “absolute best” to obtain a result and that such was of “paramount importance”. This Court noted the earlier authorities discouraging reference to the ordeal to witnesses and expressed the view that “cases must have some special features to warrant even oblique reference to the consequential difficulties for witnesses in the event of disagreement” (at [17]). The Court considered that the direction in that case “may have reached the outer limits of what is acceptable” (at [18]).
[12] In the present case, we consider that the reference to a “tremendous burden” in relation to the position of witnesses at a new trial was unfortunate, and would have been much better avoided. This case, like Eshaya, is at the outer limits of what is acceptable. It is important to emphasise the importance of not making specific reference to the effect of a retrial on witnesses. However, we consider that, while at the outer limits, the reference to the position of witnesses does not cross the line. The probability that there will be a new trial, if agreement cannot be reached, is specifically referred to, on two occasions, in the standard Papadopoulos direction. The jury would expect that if there was to be a new trial witnesses would need to give evidence again, and might form their own views about the level of inconvenience that that would involve. Here, the judge, in referring to a “tremendous burden”, went on to describe the effect of a retrial. The judge suggested that the situation of the Crown witnesses would not raise any concerns. He did specifically mention the defence witness, but did not indicate any particular difficulties which the defence witness, Mr Andrew, might encounter. We do not consider that the circumstances are such as to give rise to concern that the jury may have felt pressured by consideration for the position of witnesses. We consider that the wording of the direction was just within acceptable limits in dealing with the effect of a retrial on witnesses.
[13] The further question is whether the inclusion of the accused amongst the category of person on whom a burden would be placed takes the direction beyond the limits of what is acceptable. The Court in R v Accused said “a specific reference to a further ordeal for the accused seems somewhat out of touch with the likely reality of the accused’s preferences. Although it may do little harm, we think it best avoided” (at 59). It might be thought that any reference to the position of the accused is unlikely to raise the risk of a guilty verdict being pressured. The jury might well think that the accused would be likely to prefer a retrial to a guilty verdict. Any concern on the part of the jury as to the effects of a retrial on the accused would therefore seem to be more likely to prompt an acquittal than a guilty verdict. Here, no particular emphasis was placed by the judge on the position of the accused. We do not consider that the reference to the burden on the accused is such as to cause concern as to the verdicts.
[14] In considering whether the direction is likely to have led to pressure to produce an inappropriate verdict, this Court may have some regard to the verdicts which were in fact given. Mr Mabey submits that in all the circumstances of this case there is a real risk that the verdicts returned represent a compromise and are thus unsafe. We do not agree. For the reasons which we have given in relation to the first ground of appeal, we do not regard the verdicts as inconsistent. The record indicates that the jury had agreed on a not guilty verdict on count 3 for Mrs Timmings before the direction was given. There is nothing in the verdicts themselves to suggest that extending that same verdict to count 4, and to Mr Timmings, might have been the result of a compromise. The agreement in respect of count 3 for Mrs Timmings appears to make it less likely that the not guilty verdicts on counts 3 and 4 were a compromise for the guilty verdicts on counts 1 and 2.
[15] A further factor which influences our decision, and which would lead us to the conclusion that no miscarriage of justice has arisen from the direction to the jury, is the sequence of events which followed the giving of the Papadopoulos direction. The direction was given at 5.40pm and the jury retired again at 5.45pm. There was a dinner break between 6.00pm and 7.00pm, and the verdict was returned at 7.45pm. The experience of trial judges is that a meal break can be beneficial to a jury, and can assist in leading to a verdict. That sequence of events does not suggest that the effect of the Papadopoulos direction has been other than that which is intended.
[16] For these reasons, we are of the view that no miscarriage of justice has occurred.

Result

[17] The appeals are accordingly dismissed.

Solicitors:
Crown Law, Wellington