The Queen v Robertson [2009] NZCA 154 (29 April 2009)

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The Queen v Robertson [2009] NZCA 154 (29 April 2009)

Last Updated: 7 May 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA631/2008

[2009] NZCA 154

THE QUEEN

v

JOHN ALLAN ROBERTSON

Hearing: 22 April 2009

Court: Ellen France, Heath and Fogarty JJ

Counsel: J K W Blathwayt for Appellant
M E Ball for Crown

Judgment: 29 April 2009 at 3 pm

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.
   

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1] Mr Robertson was tried in the District Court at Wellington, before Judge Kelly and a jury, on two charges relating to the Class C controlled drug, cannabis. The first, a representative charge, alleged that Mr Robertson sold dried cannabis plant material to persons unknown between 17 November 2006 and 24 April 2007. The second alleged that, on or about 24 April 2007, Mr Robertson had cannabis plant material in his possession, for the purpose of sale.
[2] The jury returned verdicts of guilty on both charges. Mr Robertson was convicted and sentenced to an effective term of imprisonment of two years and nine months.
[3] Mr Robertson appeals against both conviction and sentence.

Outline of relevant facts

[4] Between 17 November 2006 and 24 April 2007, Mr Robertson’s home at Featherston was under covert surveillance by Police. The surveillance involved the use of a video camera situated at an unspecified location in proximity to the house. The premises were observed on 72 out of 158 days. During that period, the Police observed a total number of 720 visits to the property. Of those, 298 were visits of less than one minute in duration. A further 227 lasted less than five minutes. That meant that only 195 (or 27 per cent) of the visits were of a duration of more than five minutes. It is clear that at least some of the visits must have been legitimate.
[5] At 8 am on 24 April 2007, Police executed a search warrant at the Featherston property. Two tick lists were located, together with cannabis packaged for sale, extra bags for packaging cannabis and cellphone messages consistent with the sale of cannabis. There was no evidence of actual sales.
[6] The quantity of cannabis located was relatively small; a total of four grams. It was packaged in four re-usable bags, each containing one gram of cannabis plant material.

The convictions appeal points

[7] Two grounds of appeal are pursued:

(a) The verdicts were unreasonable.

(b) Evidence about what was captured on the videotaped surveillance was wrongly admitted.

Mr Blathwayt, for Mr Robertson, contends that, individually or cumulatively, the errors amount to a miscarriage of justice.

[8] Mr Blathwayt submits that the convictions were contrary to the weight of evidence. The critical point relates to inferences that were available to the jury. Mr Blathwayt submits that there was insufficient evidence for the jury to infer that Mr Robertson had possession of cannabis for sale and was selling cannabis from the property.
[9] The evidential point is based on the refusal of the Police to make available the videotapes of the surveillance to the defence. That stance was based on the perceived need to protect the identity of the person on whose property the cameras were placed, a policy stance not challenged by counsel for Mr Robertson. On a pre-trial application, the District Court upheld the Crown’s view. Mr Blathwayt submitted that, without the videotaped footage, Mr Robertson was deprived of his right to a fair trial because he was unable to identify visitors and provide a legitimate explanation for their presence.
[10] Ms Ball, for the Crown, acknowledges that the Crown case was circumstantial but contends that the primary facts were sufficient to enable a jury, properly directed, to draw inference of guilt on both counts. She submits that the District Court was right not to require the video footage to be made available to the defence.

Unreasonable verdicts?

[11] The law as to the applicable test is now well settled: see R v Owen [2008] 2 NZLR 37 (SC), adopting, for the most part, observations by this Court in R v Munro [2008] 2 NZLR 87 (CA).
[12] Delivering the judgment of the Supreme Court in Owen, Tipping J said:

[13] We return to the decision of the Court of Appeal in Munro. We propose to discuss the main judgment in that case only to the extent necessary for present purposes. We would endorse the following aspects of the decision in Munro:

(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c) The weight to be given to individual pieces of evidence is essentially a jury function.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

[14] At paras [86] – [87] of the main judgment in Munro the Court stated the test to be applied under s 385(1)(a) in these terms:

“[86] The correct approach to a ground of appeal under s 385(1)(a) is to assess, on the basis of all of the evidence, whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant. We consider the word “ought” is a better indication of the exercise to be conducted than the word “must” used in [R v Ramage [1985] 1 NZLR 392 (CA)]. It emphasises the task that the court has to perform. This test also, in our view, accords with the statutory wording.

[87] We consider that McLachlin J’s comments in [R v W (R) [1992] 2 SCR 122 (SCC)] encapsulate the main elements of the test. The test is not whether the verdict is one that no jury could possibly have come to. A verdict will be deemed unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt . . . The Court must always, however, keep in mind that it is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact (see the comments in [R v Biniaris [2000] 1 SCR 381 (SCC)] . . . and those in [R v Mareo (No 3) [1946] NZLR 660] . . .”

[15] We agree with the Solicitor-General’s submission that the third sentence at para [87] captures the substance of the correct approach. We did not understand the appellant, ultimately, to be suggesting any materially different test. We would not adopt the concept of a verdict being “deemed” unreasonable. It either is unreasonable or it is not. The word “deemed” suggests a reluctance to find a verdict actually unreasonable.

[13] Contrary to Mr Blathwayt’s submission, we consider that the jury was entitled to draw inferences from proved facts that Mr Robertson both had in his possession cannabis plant material for the purpose of sale and had sold such material to persons unknown. The cannabis plant material located at his home during the course of the search was located in circumstances in which the jury could readily have found it was in his possession for the purpose of sale.
[14] It is important to contextualise the facts on which the Crown invited the jury to draw an inference of guilt on both charges.
[15] During the course of the search of Mr Robertson’s home four re-sealable bags were located, at least three of which contained one gram of quality cannabis plant material. In addition, similar plastic bags were found in the kitchen cupboard and in a self-contained flat at the rear of the house. A cellphone was located containing messages consistent with the sale of cannabis.
[16] Against that backdrop, the jury had to consider the surveillance evidence. A total of 720 visits to a single dwelling over 72 days indicates, on any view, that a large number of people went to the property. When one takes account of the fact that about 73 per cent of the visits lasted less than five minutes, it is difficult to infer anything other than illegitimate activity in the nature of the sale of cannabis of the type found at Mr Robertson’s property.
[17] Mr Robertson complained that because of his inability to access the videotape he could not give or call evidence to explain the visits. The fact remains that the evidence before the Court was limited to that called by the Crown. While the inability to access the videotapes is relevant to the second point on appeal it cannot affect the first. It was open to Mr Robertson to call evidence from people he knew were regular and legitimate visitors or to give evidence himself.
[18] Applying Owen, we consider that there was ample evidence from which the jury could infer guilt. The first ground of appeal fails.

The “non-disclosure” issue

[19] On 9 June 2008, Judge Susan Thomas was asked to rule on whether the Crown was obliged to supply to the defence copies of the videotaped surveillance. The Crown opposed the application on the grounds of public interest immunity. It contended that disclosure of the tapes would reveal the location from which Mr Robertson’s premises were filmed and put the proprietor of that property at risk of reprisals.
[20] In a judgment given on 12 June 2008, Judge Thomas ruled that the videotapes were not to be disclosed and that evidence of a detective could be adduced to explain what was observed. In a careful and comprehensive judgment, the Judge discussed s 69 of the Evidence Act 2006 (the Act) which confers on the Court a discretion to override information or communications that are subject to a confidence. While an application for leave to appeal was made pre-trial, the application was dismissed: R v Robertson [2008] NZCA 274.
[21] Having completed the balancing process mandated by s 69(2) of the Act, the Judge concluded that the public interest in protecting the person on whose property the camera was located overrode any private interest that Mr Robertson had.
[22] In short, Mr Blathwayt contends that the Judge erred in exercising her discretion under s 69 because she gave insufficient weight to the possibility that non-disclosure of the tapes might result in a miscarriage of justice, due to an unfair trial or an unsafe verdict. Ms Ball submits that the Judge was right to rule that the surveillance tapes not be disclosed to the defence, having regard to the terms of s 69 of the Act.
[23] We did not hear argument on the exact scope of s 69. Both counsel accepted that the section applied.
[24] Mr Blathwayt’s primary point is that Mr Robertson required access to the videotapes to identify visitors, so that he could provide legitimate explanations for their presence. As we mentioned earlier, that overlooks the ability of other occupants of the house, regular visitors and the accused himself to give evidence of why a large number of people would attend legitimately over the period in question. Indeed, any evidence from the accused might have been rendered more powerful had he been able to say that he could not identify particular people because the videotapes had not been disclosed.
[25] The trial was not run in that way by counsel for the defence. We perceive very good tactical reasons why that was so. Nevertheless, Mr Robertson cannot claim any prejudice in relation to the right to a fair trial because of the alternative way in which the point might have been addressed in evidence. Indeed, it appears that some inroads were made in cross-examination of Crown witnesses on these points.
[26] We draw attention to a case in which access to videotape surveillance was permitted. It involved a different situation in which the videotapes were being used to identify offenders. An earlier trial had given rise to concern about the quality of identification. For those reasons, Hugh Williams J directed that the videotapes be provided in R v Allison HC AK T002481 13 February 2003. The Judge said:

[50] In the first place, in cases such as these which depend largely on aural and visual identification of accused, it is arguably fundamentally wrong that the defence should be deprived of access to one of the prime methods by which identification occurs. With the prosecution now being obliged to disclose to the defence as much material as it is, denial of access to what may in many cases may [sic] be prime evidence, and denial of the ability to check and cross-examine fully on much of that material, seems contrary to current trial practice and to the “equality of arms” approach to criminal prosecutions which underlies the New Zealand Bill of Rights Act 1990 s 24(d) and s 25(a), (e), (f).

[51] Further, what occurred in the first trial, particularly as far as the erroneous identifications were concerned, makes it patently clear that the airy, even complacent, dismissal of defence concerns in Tamati [HC NAP T 1/01 4 July 2001] is insecurely based. Cross-examination along the lines suggested in that case would not have revealed the errors in identification. Errors of that sort can only be discovered either by defence having access to the prime material on which the suggested identifications are based or by some alternative checking process which is independent and credible.

[27] This case does not fall into the Allison category. In our view, there was no reason why the videotape was required to preserve fair trial rights. The appeal point fails for that reason.

Sentence appeal

[28] Mr Blathwayt, in written submissions, questioned the trial Judge’s view that the evidence adduced at trial demonstrated “a clear degree of commerciality”. There is no merit in that point. Indeed, in putting the offending at the lowest end of Category 2 of R v Terewi [1999] 3 NZLR 62 (CA), the sentencing Judge was probably benevolent to Mr Robertson.
[29] The only other point raised is whether, for compassionate reasons, a further reduction in sentence ought to have been allowed to reflect a disability from which Mr Robertson suffers. Mr Robertson has no forearms. He was affected by the drug Thalidomide, meaning that his hands are attached to elbows. Necessarily that means that his ability to care for himself is less than able-bodied members of society.
[30] Mr Blathwayt referred us to R v Riri [2008] NZCA 441 in which the Court quashed a sentence of imprisonment and imposed a sentence of six months home detention on an offender found guilty by a jury of possession of the Class A controlled drug methamphetamine for the purpose of supply. However, that was, as the Court recognised, a “most unusual case [for which there was] no practical alternative to home detention”: at [16].
[31] The medical information before us does not put Mr Robertson into the same category as Mr Riri, a paraplegic. We see no reason to reduce the sentence further on compassionate grounds, though there appears to be jurisdiction to do so, in appropriate cases: Jarden v R [2008] 3 NZLR 612 (SC).
[32] In our view, there is no basis on which the end sentence of two years and nine months imprisonment can be challenged successfully. Therefore, the appeal against sentence also fails.

Result

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

Solicitors:
Crown Law Office, Wellington