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Court of Appeal of New Zealand |
Last Updated: 8 April 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
25 March 2014 |
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Court: |
Stevens, Keane, Andrews JJ |
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Counsel: |
W D McKean for the Appellant
M D Downs for the Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Andrews J)
Introduction
[1] The appellant was found guilty on one charge of possessing methamphetamine for supply, following a trial before Judge Harvey and a jury in the District Court at Whangarei on 21 February 2013. The appellant was charged with two co-offenders, Bernard Monk and Nicholas Nordstrand. Mr Nordstrand pleaded guilty to the charge prior to trial. Mr Monk was tried with the appellant, and was also found guilty.[1] The appellant was sentenced to imprisonment for four years and three months.[2]
[2] The appellant has appealed against both his conviction and sentence. The appeal against conviction is advanced on two grounds. First, the appellant submits that the verdict was unreasonable having regard to the evidence, and must be set aside pursuant to s 385(1)(a) of the Crimes Act 1961. Secondly, the appellant contends that the Judge did not sufficiently identify the essential elements of possession, and did not adequately direct the jury as to joint possession. The appellant advances his appeal against sentence on the ground that the Judge did not sufficiently distinguish between the respective culpability of the appellant and his co-offender.
Background
[3] At 5.36 pm on 3 June 2011, the police executed a search warrant at the appellant’s address in Whangarei. The appellant lived in residential accommodation above a motor repair workshop in a commercial city block.
[4] The police had been intercepting Mr Monk’s communications, and information they obtained indicated that Mr Monk had organised for Mr Nordstrand to travel to Auckland to pick up methamphetamine and bring it back to Whangarei. It was established that Mr Monk went to the appellant’s address at 5.04 pm. Mr Nordstrand arrived some time thereafter, but before 5.36 pm. Mr Nordstrand and Mr Monk had arranged to meet at the appellant’s address. The appellant was at the address at the time.
[5] When the police entered the address, the appellant was found coming out of the toilet on the ground floor. Mr Monk was found upstairs in the kitchen-living area, and Mr Nordstrand was found in the appellant’s bedroom.
[6] In the appellant’s bedroom, the police found 11.69 grams of methamphetamine, in a bag inside a magazine on a table. The bag of methamphetamine was open. There were further magazines on top of the magazine in which the bag of methamphetamine was found. The appellant’s wallet was found on top of the magazines. Also on the table were a $20 note and two mobile phones belonging to Mr Monk. Three bags of methamphetamine were found on the bedroom floor, one weighing 0.23 grams, another weighing 2 grams and the third weighing 0.5 grams. Mr Monk’s car keys were also on the floor. The appellant’s mobile phone was on the bed, and his dentures were on the floor beside the 0.5 gram bag of methamphetamine. The police also found digital scales, a number of empty plastic bags, Mr Nordstrand’s jacket (which contained cash in the sum of $3,800), Mr Nordstrand’s mobile phone, an empty plastic bag, and Mr Nordstrand’s wallet.
[7] A police expert witness accepted at trial that the bedroom scene appeared to be the product of people hurriedly discarding items from their person, in order to distance themselves from such items. The expert witness also gave opinion evidence that the police had disturbed the process of repackaging methamphetamine from the large bag into smaller bags, and that it would have taken between five and ten minutes to repackage the 0.23, 0.5 and 2 gram bags.
[8] At trial, the appellant’s co-accused, Mr Monk, gave evidence. Mr Monk said he had a key to the address (given to him by the appellant), and went there on 3 June 2011 to buy methamphetamine from Mr Nordstrand. Another man had come to the address, then left, and then Mr Nordstrand arrived. Mr Monk said that the appellant had gone downstairs to the toilet before Mr Nordstrand arrived. Mr Monk and Mr Nordstrand then went upstairs, and Mr Nordstrand weighed out the 2 gram bag of methamphetamine for him. Mr Monk claimed not to know where the two other small bags of methamphetamine had come from. Mr Monk also said that the appellant did not know that his address being used for the purpose of packaging methamphetamine for sale.
[9] The appellant also gave evidence, saying that he was unwell, and had gone downstairs to the toilet after Mr Monk arrived, and remained there for about 20 minutes before the police arrived. He heard the first visitor come and go, but did not hear Mr Nordstrand arrive. He said that he did not know that methamphetamine had been brought onto his property, and did not know that Mr Nordstrand was there. He “banned drugs” on his property.
[10] Detective Kemp gave evidence that he spoke to the appellant on 3 June, both at the address, and later at the police station (on both occasions after giving the appellant advice as to his rights). Detective Kemp asked the appellant who had been with him during the evening, and the appellant responded “there were others there before yous got there and I was in the toilet”. He said that the others had been there “about five minutes”. Detective Kemp also asked the appellant if the methamphetamine that had been found belonged to him, to which the appellant responded “It’s not mine”.
Was the jury’s verdict unreasonable?
Applicable principles
[11] Pursuant to s 385(1)(a) of the Crimes Act 1961, a jury verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence. In Owen v R, the Supreme Court observed that:[3]
Section 385(1)(a) contains two distinct, albeit overlapping, concepts. The first concerns a verdict which is unreasonable. A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. The second concept concerns a verdict which cannot be supported having regard to the evidence. That will be so when there is no evidence capable of supporting it. ... Although they are distinct, the two limbs of s 385(1)(a) overlap because a verdict of guilty based on no evidence must necessarily be an unreasonable verdict. On the other hand, a verdict of guilty based on some evidence is not necessarily a reasonable verdict.
[12] The Supreme Court adopted the following test in relation to determining whether a verdict is unreasonable:[4]
(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.
Submissions
[13] For the appellant, Mr McKean submitted that there was no evidence that the appellant was involved with any of the conduct between Mr Monk and Mr Nordstrand before their arrival at his address, and that no inference could be drawn that the appellant had sufficient time to be aware of Mr Nordstrand and Mr Monk packaging methamphetamine in his bedroom.
[14] Mr McKean also submitted that the elements of knowledge and control were not satisfied. There was no basis on which it could be inferred that the appellant was aware of the presence of the methamphetamine, and aside from the fact that the process of re-packaging was occurring at his address, there was no basis on which it could be inferred that the appellant had shown any intention to exercise control over the methamphetamine found in his bedroom.
[15] Mr McKean further submitted that the police had accepted that the bag of drugs found next to the appellant’s dentures could have been thrown there when Mr Monk and Mr Nordstrand discarded items and that, while the appellant’s wallet was on top of the magazine that had drugs inside it, it could have been put there hurriedly by Mr Monk and Mr Nordstrand upon becoming aware of the police presence. He submitted that it was unremarkable that the appellant’s mobile phone was on the bed in his bedroom. Accordingly, he submitted, the verdict was unreasonable having regard to the evidence.
[16] For the respondent, Mr Downs submitted that the verdict was not unreasonable. He observed that the appellant had sought a discharge under s 347 of the Crimes Act before trial. That application was dismissed, it being held that whilst the prosecution case was purely circumstantial, it was a matter for a jury to determine whether or not they were satisfied that an inference could be drawn that the elements of the crime of possession for supply had been made out.
[17] Mr Downs further submitted that it was open to the jury to reject the appellant’s contention that drug dealers would use an innocent third party’s bedroom to transact business while the third party was himself at home. Moreover, the presence of the appellant’s wallet and mobile phone in the same room as Mr Nordstrand, Mr Monk and the methamphetamine, supported the proposition that he had been in the room with them, transacting with them in relation to the methamphetamine, before going to the toilet.
[18] Mr Downs also submitted that the appellant’s response, “It’s not mine”, to a question as to the presence of methamphetamine in his bedroom, rather than, for example, “what methamphetamine?” pointed to the appellant’s knowledge of the methamphetamine being there. He submitted that it was open to the jury to conclude that Mr Nordstrand, Mr Monk and the appellant were in joint possession of the methamphetamine, with all three playing some role in repackaging the large bag of methamphetamine into smaller packages.
Discussion
[19] We are not satisfied that the jury’s verdict was unreasonable. We accept that the Crown case was circumstantial, but it was for the jury to decide whether they were satisfied that the charge against the appellant had been proved beyond reasonable doubt. The Crown case was built on the methamphetamine having been found in the appellant’s bedroom, the appellant’s evidence that he heard the first visitor come and go, but did not hear Mr Nordstrand arrive (it was suggested that he was trying to distance himself from Mr Nordstrand), his response to the question as to whose methamphetamine it was, and his statement to Detective Kemp that people had been at the address for about five minutes before the police arrived.
[20] Each of these was a strand of circumstantial evidence, and it was for the jury to decide whether, in combination, the strands constituted sufficient evidence for it to be satisfied beyond reasonable doubt that the appellant was guilty of possession for supply. Such matters needed to be assessed in light of the appellant’s evidence, and the jury’s findings on credibility. Further, it is significant, in our view, that no application was made at the end of the Crown case for the appellant to be discharged on the grounds of insufficient evidence. Had there been a real concern as to the sufficiency of evidence (particularly in light of the earlier application), we would have expected such an application to have been made at that point.
Did the Judge misdirect the jury as to the law of possession?
Submissions
[21] Mr McKean submitted first that the Judge had failed to direct the jury properly on the elements of possession, and the need for each element to be proved beyond reasonable doubt.
[22] He referred to the fact that the Judge presented only one question to the jury: “Was the accused in possession?” and then directed the jury that “possession involves four aspects”. Those “aspects” were “awareness that the drug is where it is”, “awareness of the nature of the drug”, “actual or potential control of the drug”, and “an intention to exercise that control”. Mr McKean submitted that the Judge had not directed the jury to consider whether the Crown had proved each of the elements of possession beyond reasonable doubt; that is, that the appellant was aware that the drug was where it was, that the appellant had actual or potential control of it, and that the appellant intended to exercise that control.
[23] Mr McKean submitted that the Judge’s use of the word “aspects”, and failure to say that each one had to be proved beyond reasonable doubt, left it open to the jury to conclude that the “aspects” were matters that might satisfy alone the element of possession.
[24] Secondly, Mr McKean submitted that the inadequacies of the Judge’s direction on possession were compounded by his direction relating to the reverse onus, where he directed the jury that if they were satisfied that “both accused, or one of them, was in possession of five grams or more of methamphetamine”, then “they are presumed to have had that methamphetamine for the purposes of supply”. He further submitted that the jury’s confusion as to possession was demonstrated by its question to the Judge towards the end of its deliberations, and further compounded by the Judge’s answer.
[25] Mr Downs acknowledged that the Judge’s use of the word “aspects” might be capable of being interpreted as a permissive consideration rather than a mandatory ingredient, but submitted that it was unlikely that the jury understood the comments in that way. He submitted that in the context of the summing up as a whole, the Judge had correctly directed the jury that the prosecution had to establish possession beyond reasonable doubt, and that the reverse onus (to establish that possession was not for the purpose of supply) could only apply once the “essential elements” had been proved. Mr Downs submitted that this could only be understood as including proof of possession.
[26] Mr Downs further submitted that the Judge correctly directed the jury to deal with each defendant and each count separately and that by referring to the question trail, the Judge made it clear that possession had to be established in relation to the appellant, separately from other co-defendants. He submitted that the overall effect of the jury directions was clear: possession had to be proved in relation to the appellant before the reverse onus could be engaged.
The Judge’s directions
[27] When dealing with this charge, the Judge first said:[5]
When you are dealing with count 2 which is of course in relation to both accused you have a situation where both accused has given evidence and Mr Henwood has given evidence. Now it is still for the Crown to prove the essential elements of this charge and they must do so beyond reasonable doubt. Now I will deal with the essential elements again a little later but the Crown must prove that both accused were in possession of five grams or more of methamphetamine and they must do that beyond reasonable doubt, and I have already explained to you that that is a very high standard of proof.
[28] After explaining “beyond reasonable doubt”, the Judge went on to say:[6]
When dealing with count 2, if you are satisfied that the Crown has proved beyond reasonable doubt the essential elements that it is required to prove then and only then you must go on to consider what we call the reverse onus of proof. Accordingly, if you are satisfied that the accused, or one of them, was in possession of five grams or more of methamphetamine then the law says that they are presumed to have had that methamphetamine for the purposes of supply. Each accused can rebut that presumption by proving on the balance of probabilities, that is by satisfying you all, that it is more likely than not that he did not have possession of any of the methamphetamine for the purposes of supply.
[29] The Judge repeated this direction, ending with:[7]
When dealing with this you must, of course, look at the evidence against each accused separately.
[30] The Judge continued by directing the jury to isolate the evidence relating to each individual charge and each individual accused, and to be careful not to use evidence in relation to one charge to support or bolster evidence relating to the other charge.[8]
[31] The Judge directed the jury as to possession by reference to an “issues tree” provided to the jury. For count 2, the Judge dealt first with Mr Monk. He said:[9]
So that is why I have put there for you the four aspects of possession because this is very important. To be guilty of possession or to be found in possession there are four matters you must consider. First, there has to be an awareness that the drug in this case is where it is. Secondly, there has to be an awareness of the nature of the drug. Now although it is a matter for you when dealing with Mr Monk you may have little difficulty with the first two questions. The third question though is there has to be actual or potential control of the drug, and finally, there has to be an intention on behalf of Mr Monk to exercise control over that drug. In other words, to deal with it one way or the other.
So, awareness of where the drug is. Awareness of the nature of the drug. He must have actual or potential control over the drug and he must exercise an intention – start that again – he must have an intention to exercise that control. And those are the questions that you will need to look very carefully at when considering question 2.
[32] The Judge then turned to the appellant. He directed the jury as follows:[10]
Turning then to the accused Warren Henwood. You will appreciate that the case for Warren Henwood is somewhat different because the first question is, “Has the Crown proved that Warren Henwood was in possession of methamphetamine?” Now you are all aware that Mr Henwood has denied any knowledge that the drug was even there. I draw your attention to the four aspects of possession that you need to consider. Awareness that the drug is where it is. Awareness of the nature of the drug. Actual or potential control of it and an intention to exercise that control.
Now if you find that he was in possession of methamphetamine you go to question 2. If you find that he was not you will find him not guilty. Question 2 is, “Has the Crown proved he was in possession of five grams or more of methamphetamine?” If you answer that question “no” he is not guilty. If you answer it “yes” you go to question 3. And question 3 of course is the reverse onus again. “Has he satisfied you on the balance of probabilities that he was not in possession of any of the methamphetamine for the purposes of supply?” If he has, you find him not guilty. If he has not, you find him guilty.
You may, however, consider that the most crucial question is the first question and that is of course has it been proved that he was in possession of methamphetamine? Having said that of course the other questions are there to be determined and they must be determined on the evidence.
[33] The issues tree dealt first with Count 1 (against Mr Monk only), then Count 2 (against Mr Monk and the appellant). At the head of the document (but under the heading for Count 1), in a highlighted box, are the words “NOTE: On all issues, the burden of proof beyond reasonable doubt lies on the Crown.” Count 2 is separated into (A) Mr Monk and (B) the appellant. As to the appellant, the issues tree is as follows:
- Has the Crown proved that Warren Henwood was in possession of Methamphetamine?
Yes No
↓ ↓
Go to question 2 Find the accused Not Guilty
Possession involves four aspects.
Yes No
↓ ↓
Go to question 3 Find the accused Not Guilty
Yes No
↓ ↓
Find the accused Not Guilty Find the accused Guilty
Discussion
[34] Having reviewed the whole of the Judge’s summing up, and the issues tree, we are not satisfied that the jury could have been confused as to what they were required to find proved before they could find the appellant guilty. We do not accept that the use of the word “aspects” could have left the jury confused as to what the elements of possession were. It is clear from the summing up and the questions posed in the issues tree that the jury was required to be satisfied that the appellant knew that the methamphetamine was in his room, that he knew the nature of the drug, that he had actual or potential control of it, and that he intended to exercise control over it. It was also made clear to the jury that the Crown was required to prove each of those matters beyond reasonable doubt.
[35] Mr McKean pointed to the Judge’s answer to a jury question as illustrating confusion as to the concept of possession. He claimed that the confusion was compounded by the Judge’s answer. The jury question was as follows:
If Mr Henwood is aware of five grams or more and is getting a reward for providing the premises, is he jointly with Nordstrand and Mr Monk guilty of possession for supply, despite only providing a venue and taking no other active part?
[36] The Judge’s answer to this question, following discussion with counsel, was:
The first point that I need to make and need to make quite strongly, is that there is no evidence of any reward being accepted or indeed offered. However, answering this question on the hypothetical, and that is all it is, the answer would be no. However, when you are looking at possession you need to go back to the issues tree and look at the four aspects of possession that I have outlined for you. That is how you will determine that question of possession.
[37] While we accept Mr McKean’s submission that the Judge could have said in his answer that the jury was to consider the issue of whether the appellant had possession of methamphetamine separately from the issue of whether he had possession for the purpose of supply, that was made clear in the Judge’s summing up and in the issues tree. The jury was referred back to the issues tree in the Judge’s answer to their question. Accordingly, we do not accept that the Judge’s answer compounded any confusion on the part of the jury.
The appeal against sentence
[38] At sentencing, Mr McKean submitted that the appellant should be sentenced on the basis that his only role in the offending was to supply the premises used by Mr Nordstrand and Mr Monk to repackage methamphetamine. The Judge rejected that submission, saying that to do so would be inconsistent with the jury’s verdict.[11] The Judge also referred to his answer to the jury’s question; that the appellant could not be guilty of the charge of possession of methamphetamine for the purpose of supply if he simply allowed his premises to be used.[12] The Judge went on to say that the jury’s verdict was to be taken as acceptance that the appellant was part of the transaction.
[39] The Judge adopted a starting point of four years’ imprisonment (the same as that adopted for Mr Monk in respect of the charge relating to 3 June 2011), uplifted by three months to recognise his previous convictions. That was the end sentence.
[40] Mr McKean submitted on appeal that the Judge erred in sentencing by failing to distinguish the appellant’s role from that of Mr Monk. He submitted that there was no evidence that the appellant was actually involved in the supply of methamphetamine, and that in the light of the appellant’s very limited role, he should have been sentenced on the same basis as if he had been charged with permitting premises to be used. In the circumstances, the starting point should have been around 18 to 24 months’ imprisonment, with a modest uplift applied in respect of the previous convictions.
[41] Mr Downs submitted that it was open to the Judge to reject the submission as to the appellant’s limited involvement for the reasons given by the Judge, and that the starting point adopted was within the available range for offending involving, in total, approximately 13 grams of methamphetamine.
[42] We accept Mr McKean’s submission that the sentence imposed for methamphetamine offending must reflect the offender’s role in the offending, as well as the quantity of methamphetamine involved.[13] However, as the Judge said, the jury’s verdict can only be taken as accepting that the appellant was involved in the methamphetamine transaction on 3 June 2011. Accordingly, there are no grounds on which the Judge could have concluded that the appellant had a lesser role.
[43] The starting point adopted by the Judge was therefore within the range available to him, and the uplift for previous convictions was in no way excessive. We conclude that there is no basis on which the sentence could be interfered with.
Result
[44] The appeals against conviction and sentence are dismissed.
Solicitors:
Webb Ross
McNab Kilpatrick Ltd, Whangarei for Appellant
Crown Law Office, Wellington
for Respondent
[1] Mr Monk was also found guilty on a second charge of possession of methamphetamine for supply, relating to events on another occasion.
[2] R v Henwood DC Whangarei CRI-2011-088-2419, 9 April 2013 [Sentencing notes].
[3] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [5].
[4] At [13], endorsing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [86]–[87].
[5] R v Henwood DC Whangerei CRI-2011-088-2419, 18 February 2013 (Summing up of Judge D G Harvey) at [13].
[6] At [15].
[7] At [16].
[8] At [20].
[9] At [28].
[10] At [31].
[11] Sentencing Notes, above n 2, at [17].
[12] At [17], and as set out at [35]–[36] above.
[13] See R v Fatu [2006] 2 NZLR 72 (CA) at [43].
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