The Queen v Pope and Pope [2008] NZCA 284 (6 August 2008)

Last Updated: 19 August 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA177/2008CA191/2008 [2008] NZCA 284THE QUEEN

v

CHERRIN BRIAN POPEHEMI PAKI POPE

Hearing: 24 July 2008

Court: Baragwanath, Chisholm and Heath JJ

Counsel: P J Butler for C B Pope
A S Greig for H P Pope
P K Feltham for Crown

Judgment: 6 August 2008 at 4pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1] Following trial before Judge McKegg and a jury in the District Court at Blenheim the appellants, who are brothers, were found guilty on charges of cultivating cannabis, possession of cannabis for sale, producing cannabis oil and possession of cannabis oil for supply. They were both sentenced to four years imprisonment.
[2] Both appellants appeal against conviction on the grounds that there has been a miscarriage of justice because the Judge erroneously admitted into evidence:

(i) A certificate of analysis.

(ii) The evidence of two police officers purporting to give expert evidence.

A further ground of appeal against conviction based on the absence of a lies direction was abandoned. Although both appellants also appeal against sentence, Hemi Pope only pursues his appeal against sentence if his convictions on counts 3 and 4 are quashed.

Background

[3] On 3 April 2006 police officers executed a search warrant at a Marlborough rural property comprising around ten acres. It is Mäori land with multiple owners and both brothers have an interest in the land. The Crown alleged that at the relevant time the brothers were using the property as their base, with Cherrin Pope living in the cottage and Hemi Pope living in a garage adjacent to the cottage. Cherrin Pope was at the property when the search warrant was executed.
[4] The police search revealed 40 cannabis plants ranging from one to one and a half metres in height growing at various locations on the property. Some of the cannabis was growing in a well fenced clearing. A total of 16 kilograms of dried cannabis head and 7.2 kilograms of dried cannabis leaf was located at various places on the property.
[5] About 750 metres from the cottage the police located a bowl containing an oil-like substance in a derelict vehicle. On subsequent analysis the bowl was found to contain 9.6 grams of cannabis oil. An ESR certificate of analysis to that effect was admitted into evidence, and is not in issue.
[6] A rectangular glass dish and scraper were found in an old stove under a lean-to by the cottage. This dish and scraper also contained the remnants of an oil-like substance. Three fingerprints on the bottom of the dish matched those of Cherrin Pope and one in the oil-like substance matched those of Hemi Pope. An ESR certificate of analysis relating to the remnants in this dish has given rise to the first ground of appeal.
[7] As was their right, both appellants declined to make statements.
[8] Shortly before the trial was due to begin the prosecutor realised that the remnants in the rectangular glass dish had not been analysed and immediately took steps to rectify that situation. An ESR analysis confirmed that the remnants were indeed cannabis oil and part way through the prosecution case the Crown sought to adduce the certificate of analysis pursuant to s 19 of the Evidence Act 2006 on the basis that it was a business record. While Cherrin Pope did not object, his brother objected to admission of the certificate because the necessary notice had not been given. Judge McKegg dispensed with the notice requirement pursuant to s 22(5) of the Evidence Act and admitted the certificate.
[9] In the meantime, and at an earlier point in the trial, two long-serving police officers had purported to give expert evidence that the remnants in the rectangular dish were cannabis oil. Their evidence was not challenged by trial counsel (neither Mr Greig nor Mr Butler appeared at trial). Admission of this evidence has given rise to the second ground of appeal.
[10] The primary issue at trial was whether the Crown could prove that the brothers were associated with the drug activities on the property. Cherrin Pope gave evidence that while he used the address as a mailing address and for the purpose of his firearms licence, he did not live permanently at the address. He claimed that he was unaware of the drug activities on the property. Hemi Pope did not give evidence.

Was the certificate of analysis properly admitted?

[11] Section 31 of the Misuse of Drugs Act 1975 relevantly provides:

31 Evidence of analysis

...

(2) Subject to subsections (3) and (4) of this section, in any proceedings for an offence against this Act, a certificate purporting to be signed by an analyst, and certifying that, on a date stated in the certificate, the substance ... was received ... and that upon analysis that substance ... was found to be ... a particular controlled drug ... shall until the contrary is proved be sufficient evidence—

(a) Of the qualifications and authority of the person by whom the analysis was carried out; and

(b) Of the authority of the person who signed the certificate to sign that certificate; and

(c) Of the facts stated in the certificate.

...

(3) A certificate referred to in subsection (2) of this section shall be admissible in evidence only if—

(a) At least 7 clear days before the hearing at which the certificate is tendered, a copy of that certificate is served, by or on behalf of the prosecutor, on the defendant, and the defendant is at the same time informed in writing that the prosecutor does not propose to call the person who made the analysis as a witness at the hearing; and

(b) The defendant does not, by notice in writing given to the prosecutor at least 3 clear days before the hearing, require the person who made the analysis to be called by the prosecutor as a witness at the hearing.

...

Given that this section was not mentioned by Judge McKegg in his ruling, it can be safely inferred that it was not considered by him.

[12] Instead the Judge approached the matter on the basis that the certificate of analysis was a “business record” under the Evidence Act and that it could be produced under s 19(1)(c) of that Act which provides:

19 Admissibility of hearsay statements contained in business records

(1) A hearsay statement contained in a business record is admissible if—

...

(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.

(2) This section is subject to sections 20 and 22.

Judge McKegg accepted that there would be undue expense or delay if the ESR scientist, who was “on call” in respect of an Auckland trial, was required to give evidence in person at Blenheim. He also noted that the ESR analysis only served to confirm evidence already given by the two police officers that the dish contained remnants of cannabis oil.

[13] Having reached that point the Judge was faced with the fact that no notice of the intention to adduce hearsay evidence had been provided, as required by s 22(2). He decided that this was an appropriate case to exercise the power to dispense with notice under s 22(5) because, first, there would be no substantial prejudice to the accused and, second, the interests of justice required such dispensation.
[14] The hearsay provisions of the Evidence Act do not, however, provide a mechanism for circumventing the requirement under s 31(3) of the Misuse of Drugs Act that a certificate under that section is admissible “only if” a copy of that certificate is served on the defendant at least seven days before the hearing and the defendant does not require the person who made the analysis to be called as a witness. It is well established that this procedure must be strictly observed: see Bell v Police HC AK M1554/79 6 November 1979, R v Ramzan [1985] 1 NZLR 227 (CA), Langley v Griffiths HC AK AP 199/92 16 November 1992.
[15] Orthodox principles of statutory interpretation require the specific provisions of the Misuse of Drugs Act to prevail over the general provisions of the Evidence Act. Moreover, s 5(1) of the Evidence Act expressly provides that if there is an inconsistency between the provisions of that Act and any other enactment, the provisions of the other enactment shall prevail unless the Evidence Act provides otherwise. Clearly there are inconsistencies between the two Acts. First, there is a conflict between the power to waive notice under s22(5) of the Evidence Act and the notice requirement (without any power of dispensation) under s 31 of the Misuse of Drugs Act. Second, the power to waive the notice requirement under s 22(5) would effectively negate the statutory right of a defendant to require the analyst to be called by the prosecutor under s 31(3)(b).
[16] We conclude that s 31 prevails and the Judge did not have power to waive the notice requirement. In the absence of notice complying with s 31(3)(a) of the Misuse of Drugs Act the certificate was inadmissible. The first ground of appeal has been made out.

Was the evidence of the two police officers properly admitted?

[17] Although two police officers purported to give expert evidence about the identity of remnants in the dish, it is clear to us that Constable Hendrickson fell well short of meeting even the most liberal threshold requirement and that his evidence identifying the cannabis oil in the dish was thereby inadmissible. We now turn to the other officer.
[18] At an early stage of Senior Constable McKenzie’s evidence in chief the following exchange took place between the prosecutor and the police officer:

17. Have u any idea how many cannabis growing operatns u would have visited during yr time as Police Officer.
1. Hundreds if not thousands.
17. What about your dealgs with cannabis oil.
1. From time workg as ground teams we wld come across cannabis oil or elements for manufacture of. Often byproduct of when u havnt got enough head to use the leaf material as byproduct to produce cannabis oil.
17. Have u received training how to identify cannabis plant and oil.
1. I have in cannabis recovery the plant distnctive from cannabis oil which we trained with marmite, similar consistency.
17. Dealing with the two bowls recovered, when u first saw the round bowl, did u form the view what it may be.
1. I immediately assumed cannabis oil.
17. What basis.
1. Consistency if u seen it before it’s a sticky tar like substance, similar to marmite and the way it was sitting the situation it was.
17. Does it have a distinctive smell.
1. It does, its not something I get involved with it can be hazardous sniffing stuff.
17. The rectangular bowl u form a view what had been in that bowl.
1. Appears remains of cannabis oil. Its quite black and tarey but has green tinge.
17. Were u able to form a view how much cannabis oil had been in the rectangular bowl at some stage.
1. Appeared the bottom of it had been full. Looking at the scraper u cld see the tide mark which was about 1cm.
17. Was there a similar tide mark up the sides of the rectangular bowl.
1. Yes. Similar distance but had been scraped up the side of the bowl so had dragged some up.

Apart from brief questioning about how cannabis oil is derived from cannabis, there was no challenge during cross-examination to the expertise of the Senior Constable or the accuracy of his identification.

[19] For the appellants Mr Greig and Mr Butler challenged the admission of the Senior Constable’s evidence on several grounds: the evidence fell well short of qualifying the Senior Constable as an expert; as a witness of fact he was unable to demonstrate the necessary independence to qualify as an expert; he did not have the ability to distinguish cannabis oil from other substances with a similar appearance because cannabis oil does not have any unique appearance that would render it identifiable without analysis; the Constable “assumed” it was cannabis oil; and the requirements of s 25 of the Evidence Act could not be met.
[20] At the outset we reject any suggestion that cannabis oil can only be identified by scientific analysis. In R v MacDonald CA55/95 6 July 1995 this Court stated:

Expert evidence to establish that a substance or plant material is a controlled drug under the Misuse of Drugs Act 1975 is usually given by a scientist. Identification of such a substance, however, need not always be by way of chemical analysis. It may be proved by a combination of circumstances including the visual or other sensory observations of witnesses. In a number of cases lay persons with sufficient experience in relation to cannabis have given evidence as to the nature of a substance which they saw or dealt with.

Earlier the same view was expressed in R v Cruse [1989] 2 NZLR 279 (CA). We do not see any reason why those observations should not apply equally to cannabis oil.

[21] The critical issue is whether Senior Constable McKenzie qualified as an expert witness. Included in the Evidence Act are the following definitions:

“Expert” means a person who has specialised knowledge or skill based on training, study, or experience

“Expert evidence” means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion

While views may differ as to whether the evidence of the Senior Constable referred to in [18] reached the standard to qualify him as an expert witness by reason of experience and training, we are satisfied that the absence of any challenge to his expertise at trial favours admission of his opinion evidence. Had any objection been raised it would have been open to the Crown to lead more specific evidence on issues of qualification. In our view, the appellants ought not to be allowed to bring a belated challenge to the Senior Constable’s expertise at this late stage.

[22] The appellants argued that the officer’s evidence was inadmissible by virtue of s 25 of the Evidence Act which relevantly provides:

25 Admissibility of expert opinion evidence

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

(2) An opinion by an expert is not inadmissible simply because it is about—

(a) an ultimate issue to be determined in a proceeding; or

(b) a matter of common knowledge.

(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.

We have no doubt that the jury was likely to obtain substantial help from Senior Constable McKenzie’s opinion that the dish contained remnants of cannabis oil. That fact was, of course, of consequence to the determination of counts 3 and 4 and there can be no suggestion that the opinion was outside the expertise of the Senior Constable.

[23] To the extent that counsel for the appellants challenged the admissibility of the police officer’s evidence on the ground that he was also a witness of fact, the observations of this Court in R v Williams & Ors CA63 – 66/05 CA92/05 CA 101/05 9 December 2005 are highly relevant:

[119] It is frequently the case that a witness deposes as to a fact, and then may express an opinion in areas in which he or she is qualified as an expert about some matters. No general rule can be laid down. But if what counsel says is correct then expert police officers would be restricted in their participation as investigators of fact in relation to alleged crimes, and conversely officers involved in factual investigations would be incapable of giving expert evidence within areas of their expertise. That cannot be the position. Provided that opinion evidence is described exactly as that, and it follows upon a proper qualification by the witness of the expertise necessary to express such an opinion, there can be no objection to what occurred. That a witness also gives evidence as to a fact, in other respects, is beside the point. Of course, the Judge should direct the jury on how to use opinion evidence, and this she did.

That approach was endorsed in R v Jones [2007] NZCA 187 at [19]. We accept that in the circumstances of this case the Senior Constable was entitled to give evidence both as a witness of fact and an expert witness.

[24] Finally, we refer to the submission on behalf of the appellants that the officer had “assumed” that the substance was cannabis oil. However, that assumption related to the substance in the bowl, not the dish, and the assumption was verified by the ESR analysis. The officer’s evidence in relation to the remnants in the dish was more robust.
[25] Our conclusions are, therefore, that although the evidence of Constable Hendrickson identifying the remnants of cannabis oil in the dish was inadmissible, the evidence of Senior Constable McKenzie to the same effect was admissible. This ground of appeal has been made out in part.

Does the s 385(1) proviso to the Crimes Act apply?

[26] The proviso to s385(1) of the Crimes Act 1961 states:

385. Determination of appeals in ordinary cases

...

(1) On any appeal ... the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion that one of the grounds in (a) to (d) is made out

...

provided that the Court of Appeal ... may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

For reasons that follow we are satisfied that the proviso applies in this case.

[27] The underlying issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellants were associated with the drug activities which were patently being conducted on the property. It is clear from the jury’s verdicts that they were satisfied that this had been proved. The issue is whether, without the certificate of analysis and evidence of Constable Hendrickson, the appellants would have inevitably been convicted on counts 3 and 4. We are satisfied that this would have been the case.
[28] There was evidence that 9.6 grams of cannabis oil had been found on the property. There was no issue about the admissibility of the certificate of analysis relating to that cannabis oil. By itself that quantity of cannabis oil was sufficient to trigger the presumption of possession for supply. Notwithstanding that this oil was discovered about 750 metres from the cottage and garage, it was still on the same property which was not large and we consider that this evidence alone would have been sufficient to justify the guilty verdicts on counts 3 and 4. But that evidence did not stand alone. There was also the evidence of Senior Constable McKenzie that remnants of cannabis oil had been found on a dish which, importantly, carried the fingerprints of the two appellants. In short, the evidence against the appellants on counts 3 and 4 was overwhelming. There is no issue about the verdicts on counts 1 and 2 which related to the cannabis plants.
[29] One of the members of the Bench noted that the Judge had not provided the jury with the customary direction about expert witnesses. While such a direction should have been given with reference to the expert evidence of Senior Constable McKenzie, we do not consider that the absence of such a direction can alter the outcome. As we have said, the evidence that 9.6 grams of cannabis oil had been found in the bowl was of itself sufficient to support the convictions on counts 3 and 4.
[30] Finally, it is necessary to consider whether the proviso is excluded because the irregularities in the conduct of the trial rendered the trial unfair in the sense discussed in R v Howse [2006] 1 NZLR 433 (PC). As this Court noted in R v K [2008] NZCA 1 at [53], the Privy Council took the view that the unfair trial threshold should be kept high to avoid stultifying the operation of the proviso. We do not consider that the incorrect admission of the evidence relating to the remnants in the dish altered the course or the conduct of the trial in other respects. The trial was not unfair and the proviso applies.
[31] The appeals against conviction must fail.

Sentence

[32] Given that the conviction appeals have failed, it is only necessary to consider the sentence appeal by Cherrin Pope.
[33] Judge McKegg noted that the Crown had provided a range of values for cannabis, the lower street value being $136,500. He considered that the offending was at the top of the second category described in R v Terewi [1999] 3 NZLR 62 (CA), namely, small scale cultivation for commercial purposes with the intention of deriving a profit. While the Judge accepted that Cherrin Pope had experienced little difficulty with the law in the past and was highly regarded within the family units, he correctly proceeded on the long established footing that personal circumstances count for little when it comes to drug offending.
[34] Taking the cultivation of cannabis as the lead offence and the production of cannabis oil as an aggravating factor, the Judge arrived at a starting point of four years imprisonment. He was not prepared to differentiate between the brothers and, having concluded that there were no mitigating factors, sentenced both brothers to four years imprisonment.
[35] Mr Butler realistically abandoned his initial contention that the starting point adopted by the Judge was too high. Clearly it was within the range available to the Judge. But Mr Butler claimed that in all the circumstances the Judge should have imposed the least restrictive sentence available and that, given the circumstances, it would have been appropriate for there to have been a differentiation of at least nine months between the brothers.
[36] We accept that the Judge accurately categorised this offending as being at the top of the second category in R v Terewi which would indicate a starting point of four years. There were no mitigating factors. Understandably the Judge considered that the brothers were in the offending together and that the same sentence should be imposed on both. In arriving at that conclusion he correctly took into account that personal circumstances could carry little weight. The sentence was not manifestly excessive.

Outcome

[37] The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington