Wise v R [2016] NZCA 327 (14 July 2016)

Last Updated: 3 August 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA689/2014 [2016] NZCA 327
BETWEEN	CHRISTOPHER WISE Appellant
AND	THE QUEEN Respondent
CA28/2015
BETWEEN	JUSTIN LEE ABEL Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2016
Court:	Harrison, Simon France and Woolford JJ
Counsel:	M S Gibson for Appellant (CA689/2014) R M Mansfield for Appellant (CA28/2015) K S Grau and A Ewing for Respondent
Judgment:	2 June 2016
Reasons:	14 July 2016 at 10.30 am

JUDGMENT OF THE COURT

The appeals against conviction are allowed.
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REASONS OF THE COURT

(Given by Harrison J)

[1] We have already allowed these appeals against conviction. We can explain our reasons briefly given the unique circumstances and our confidence that they are unlikely to be repeated.
[2] Messrs Wise and Abel were found guilty following a trial before Toogood J and a jury in the High Court at Auckland on a joint charge of possessing pseudoephedrine for supply. They were implicated by virtue of cell phone communications with Zebulin Davoren which the police intercepted. Mr Davoren was a ringleader of a major methamphetamine and pseudoephedrine manufacturing and dealing operation in West Auckland. He was found guilty of 31 offences following the trial, convicted and sentenced to 18 and a half years’ imprisonment. His appeal against sentence has been dismissed in a separate judgment being issued today.^[1]
[3] In brief summary, Messrs Wise and Davoren met in a restaurant car park in Manukau in November 2012. The police had observed the meeting. They stopped the car in which Mr Wise was a passenger when leaving the car park. Mr Abel was also present. The police found $5,000 cash in the car and about 4.4 kilograms of pseudoephedrine inside a backpack which Mr Abel had been wearing earlier that day.
[4] Messrs Wise and Abel were indicted for trial along with Mr Davoren and eight others. Mr Abel absconded while on bail. The trial proceeded in his absence. His trial counsel, the late Edward Leary, applied under s 340(3) of the Crimes Act 1961 for a separate trial of the count against Messrs Wise and Abel, relying on the default position under s 376 that Mr Abel is entitled to be present in court during the whole of his trial.^[2] Mr Gibson for Mr Wise opposed the application.
[5] The Judge refused severance even though trial of the discrete charge jointly faced by Messrs Abel and Wise would not have taken more than a few days. The trial of the other offenders was scheduled to last for some months. The Judge appointed Mr Leary to act as amicus curiae during the trial but to conduct himself as if he was Mr Abel’s counsel. An appointment of this nature incorporated unusual and not necessarily compatible functions.
[6] Counsel for Mr Wise, Mr Gibson, and Mr Leary ran what are known as “cut throat” defences at trial. Each sought to exculpate his client by incriminating the other. The jury’s verdicts reflect the self-destructive effect of this approach.
[7] The Judge sentenced Mr Wise to a total of eight years’ imprisonment. But this sentence included what he described as a raft of unrelated dishonesty offences committed while Mr Wise was on bail. Without them, the Judge would have imposed a sentence of four years’ imprisonment on the methamphetamine dealing charge. He imposed the same sentence of four years on Mr Abel.
[8] On appeal both Messrs Mansfield and Gibson for Messrs Abel and Wise respectively challenged the verdict on the primary ground of Mr Leary’s misconduct as amicus. It is unnecessary for us to determine Mr Mansfield’s additional ground that the Judge erred in refusing to sever and adjourn trial of the sole charge faced by both men.
[9] We need say very little about the primary ground of appeal. It is centred upon Mr Leary’s closing address. With a degree of understatement, Ms Ewing described the address as “colourful”. It was also grossly unprofessional and inappropriate. It was predominantly a personalised attack on Mr Gibson’s integrity and performance as Mr Wise’s counsel. It was replete with gratuitous and insulting remarks for which there was no possible justification or rational purpose. It sought to introduce evidence which the Judge had earlier ruled was inadmissible. It was also inappropriate in a number of other respects.
[10] We are in no doubt that the tone and content of Mr Leary’s address were such that it could have unfairly prejudiced Mr Wise’s defence. And it could also have been counterproductive for Mr Abel, with whom the jury may well have associated Mr Leary. Toogood J recognised the problems caused by Mr Leary’s address. He directed the jury to ignore much of what was said and attempted to minimise the potential prejudice. But by then it was too late to undo the damage which had already been done. The reluctance of trial judges to intervene in closing addresses is understandable but it should be exercised if and when a counsel plainly oversteps the mark.
[11] For these brief reasons we are satisfied that there was a miscarriage of justice.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Sililoto & Ors v R [2016] NZCA 328.

^[2] R v Afakasi HC Auckland CRI-2013-004-4424, 9 July 2014 (Ruling No 1) at [5].