The Queen v Gray [2009] NZCA 31 (24 February 2009)

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The Queen v Gray [2009] NZCA 31 (24 February 2009)

Last Updated: 4 March 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA562/2008

[2009] NZCA 31

THE QUEEN

v

MAUREEN RITA GRAY

Hearing: 12 February 2009

Court: Robertson, Hugh Williams and Miller JJ

Counsel: M J Lillico for Appellant
T Epati and K Laurenson for Crown

Judgment: 24 February 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Hugh Williams J)

Introduction

[1] The appellant, Ms Gray, was convicted in the Gisborne District Court (CRI 2008-016-001911) on 2 July 2008 on one count of possessing cannabis for the purpose of sale.
[2] On 4 August 2008 (CRI 2007-016-003005) she was sentenced by Judge Perkins (who presided at the trial) to two years’ imprisonment.
[3] She appeals against the conviction on the basis that the offence of permitting her premises to be used for the purpose of an offence against the Misuse of Drugs Act 1975 was an included offence and should have been put to the jury, and on the basis that the summing-up reversed the onus of proof.
[4] The sentence appeal is advanced on the basis that the sentence was manifestly excessive and the appellant should have been sentenced to home detention.

Facts

[5] The Police executed a search warrant on the appellant’s property on 23 October 2007. They discovered several bags containing cannabis leaf weighing 541 grams secreted in a locked wardrobe, together with some cannabis “bud” weighing three grams. In the roof, to which access was gained through a man-hole, Police found metal boxes, a bucket and other containers containing cannabis plant head material, nearly 7,000 seeds and some cannabis oil. Further cannabis was found in a hallway cupboard and 27 cannabis seedlings were growing at the rear of the property. In all, over 3.5kgs of cannabis was located at the appellant’s property.
[6] To the Police and in evidence at trial the appellant said she was holding the cannabis for another person but declined to name them beyond saying it was a family member.
[7] At trial, the appellant made no attempt to rebut the presumption arising from s 6(6) of the Misuse of Drugs act 1975 that the cannabis was for sale. The only issue at trial was whether the Crown could prove the legal elements of possession against Ms Gray.
[8] The property was occupied by the appellant and her partner, Mr Pomana. He was charged with possession of cannabis for sale, cultivation and possession of ammunition arising from the search. He was found guilty on the ammunition charge. He pleaded guilty to the cultivation charge but the jury were unable to agree on the possession charge. Before re-trial, the Crown amended the indictment from possession of cannabis for sale to permitting premises to be used for the purposes of offences against the Misuse of Drugs Act. He pleaded guilty and was sentenced to Community Work.

Reversal of onus of proof

[9] Mr Lillico, counsel for the appellant, relied on the following passage for his submission that the summing-up amounted to a reversal of the onus of proof:

[22] What is put in issue here by the accused is this element of ‘possession’. She does not dispute knowledge that the drugs were there but says that the cannabis was put in her home by a third person, not her or her partner, and locked away so that she had no ability to control the use of it. Now she says that she did not have the key to the lock. The Crown doesn’t necessarily accept that. Even if she got access, she says, to the closet, she says that she could not access the ceiling cavity because of her size, weight and medical conditions, and again those are not disputed.

[23] (Now you need to decide whether you believe the accused’s version of who put it there. You need to decide whether she did have access to or control over the drugs). Remember in that context what I have said to you about the conditions of possession, and ‘control’ can be potential control exercised through another person.

[24] So it is that issue of possession, which is the primary factual matter that you need to consider in your deliberations. If you decide from what you have heard that she did not have possession, in the legal sense that I have described, then one of the material elements of the charge has not been proved and the Crown then has not discharged the onus on it. If you decide that she did have possession, then really that is the end of the matter because the other element of ‘the purposes of sale’ is not in dispute in this trial. It is for you to consider the issues on all the evidence you have heard. As I have said, you are the judges of fact. What you make of the evidence is a matter for you.

[10] The particular passages which Mr Lillico challenged were [23] and all but the last three sentences of [24]. He suggested that the passage telling the jury they needed to decide whether the “accused’s version of who put it there” was correct was at odds with the onus of proof and the tripartite warning the Judge had earlier given, particularly in a trial where the only issue was whether the appellant had possession of the cannabis in law.
[11] For the Crown, Ms Epati submitted there was nothing in the point as the Judge had given the standard tripartite direction and also the standard directions as to onus, the standard of proof, and reasonable doubt. He also repeated his remarks about onus at the conclusion of the summing-up.
[12] Even if that were insufficient, Ms Epati submitted the words under challenge in the summing-up did not reverse the burden of proof but simply directed the jury’s attention to the prime issue in the case, namely whether the evidence showed Ms Gray or someone else had possession and control of the cannabis.
[13] We are satisfied that the Crown submissions are correct. The Judge’s directions earlier than those under challenge were conventional directions as to onus and standard of proof. They were repeated after the passage under challenge. As is well understood, summings-up require to be read as a whole, not dissected minutely. In this case, even putting it at its highest for the appellant, a direction as to the jury’s need to believe the appellant’s version of the facts does no more than suggest to the jury that it needed to consider all the evidence in the case on the crucial issue in the trial, namely whether the Crown had proved Ms Gray was in possession of the drugs.

Included offence

[14] As we understood his submissions Mr Lillico initially submitted that the offence of permitting premises to be used for the commission of an offence under the Misuse of Drugs Act was included in the charge brought against Ms Gray. He later resiled from that stance but nonetheless submitted the trial Judge should have exercised his discretion under s 339 of the Crimes Act 1961 to put the alternative charge to the jury: R v Mokaraka [2002] 1 NZLR 793 at [13]. He said the Crown presented the case to the jury on the basis that Ms Gray occupied the house where the cannabis was found and knew from her own admission that it was present and secreted from other people and she said that it was in the possession of another. That, he submitted, might have opened the possibility of Ms Gray being convicted on a charge of permitting her premises to be used for the purpose of an offence against the Misuse of Drugs Act and the Judge, as a matter of his discretion, should have left that option to the jury.
[15] Mr Lillico’s submission was that the way the case was presented meant the jury had only what he described as a “rather artificial” choice between convicting Ms Gray on the charge she faced or acquitting her entirely, notwithstanding that her trial counsel – not Mr Lillico – had suggested to the jury that the appellant might be guilty on the charge of permitting her premises to be used for the commission of the offence.
[16] Ms Epati submitted the suggested alternative is not an included charge. In order to prove an offence under s 6(1)(f) the Crown does not need to adduce evidence as to what other parties might have intended to do with the prohibited drugs, whereas, in Ms Gray’s case, since she did not contest the applicability of the presumption for sale should she be found to be in possession, the elements of the offence differed.
[17] It was common ground the Judge did not leave the permitting premises offence to the jury in summing-up despite defence counsel’s reference to it. It was also common ground that trial counsel did not ask the Judge to direct on that issue – even at the conclusion of the summing-up.
[18] The situation which arose in the appellant’s trial falls squarely within the observations by this Court in Mokaraka. In discussing circumstances where an included charge might not, as a matter of discretion, be put to a jury, this Court said:

... Another could be a situation in which the question of included charges was raised so late that a party could have been prejudiced by the way in which the trial had been conducted up to that point: R v Carr [1995] 2 NZLR 339 at p 343. Another would be any legitimate Crown concern that the inclusion of the lesser alternative might provide the jury with a pretext for softening the verdict in circumstances where, if they discharged their duty, they could only find the accused guilty on the more serious charge or not at all.

[17] Conversely, an included charge is more likely to be favoured in cases where the jury might otherwise convict out of a reluctance to see the accused get clean away with what on any view was disgraceful conduct ...

[19] The Court concluded its discussion on the topic with the following passage:

[18] In the end there remains a broad discretion to be exercised by the trial Judge in the light of the particular circumstances of the particular case. The aim is to ensure that the issues left to the jury reflect those that fairly arise on the evidence without unnecessary distractions. It is not for an appellate Court to intervene unless satisfied that the jury may have convicted out of a reluctance to see the defendant get away with what, on any view, was disgraceful conduct.

[19] It follows from the last point that there may be cases – we think few – in which the trial Judge will need to take the initiative. It may not always be sufficient to wait for an application by counsel, whether for the Crown or the defence, particularly if the jury itself has raised the possibility of a lesser alternative.

[20] Here, the suggestion by trial counsel that Ms Gray may have been guilty of a lesser – though still serious – offence was one made in his final address and, we think, in an attempt to have the jury “soften” its verdict. When the Judge did not deal with that possibility in summing-up, trial counsel did not pursue it. Putting the permitting premises charge to the jury would have been a needless distraction in its deliberation, given that the sole issue at trial was whether the Crown could prove possession of the cannabis by the appellant.
[21] This ground of appeal fails.

Sentence appeal

[22] In sentencing the appellant, the Judge assessed Ms Gray’s personal circumstances and noted the Probation Officer did not recommend home detention because of the “poor relationship with other members in the home” and because the offending occurred there (at [5]). He held the appellant’s offending fell in the middle of the second band of R v Terewi [1999] 3 NZLR 62 as her offending was aggravated by the quantity of cannabis and its concealment. A starting point of two and a half years imprisonment was chosen because of the appellant’s “high” culpability and criminality. Six months was deducted for personal circumstances.
[23] Mr Lillico submitted that, notwithstanding the Probation Officer’s recommendation, the Judge should have considered home detention given Ms Gray’s personal circumstances, particularly her age (59 at sentencing) and the lack of relevant previous offending. He pointed out that offending in the property where home detention is proposed to occur is no bar: R v Bowen [2007] NZCA 253 at [40]. It should thus have been given more detailed consideration.
[24] Ms Epati submitted the sentence imposed was well within range for the trial Judge and there was no basis for the suggestion the Judge fettered his consideration of home detention in the way suggested.
[25] The Judge was correct when he described this as serious offending involving a significant quantity of cannabis in varying forms, much of it concealed to avoid discovery.
[26] The starting point chosen of two and a half years imprisonment was well within range for a Terewi Band 2 offence and the allowance for the appellant’s personal circumstances was also appropriate.
[27] No basis has been made out to interfere with the sentence imposed by the trial Judge.
[28] It may be as well to observe that although the sentence imposed on the appellant’s partner would appear to be lenient by comparison with that imposed on Ms Gray, that resulted from their different circumstances earlier described. She must be taken to be a principal offender in her own right, not a mere associate of his. And, he was convicted of a lesser offence.

Result

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

Solicitors:
Ord Lillico, Wellington, for Appellant.
Crown Law Office, Wellington