Allen v The Queen
[2020] NZCA 596
•26 November 2020 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA88/1994 [2020] NZCA 596 |
| BETWEEN | SHAUN ROBERT ALLEN |
| AND | THE QUEEN |
| Court: | French, Clifford and Gilbert JJ |
Counsel: | Applicant in person |
Judgment: | 26 November 2020 at 9 am |
JUDGMENT OF THE COURT
The application to recall the judgment of this Court delivered on 19 December 1996 is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Allen was convicted following a jury trial in 1994 on a charge of cultivating cannabis. He appealed his conviction to this Court. The appeal was dismissed in a judgment issued on 19 December 1996.[1]
[1]R v Allen CA88/94, 19 December 1996.
Mr Allen now seeks to recall that judgment on grounds relating to the admissibility of a certificate of analysis produced at trial to prove that seeds and plant material allegedly seized from his properties was cannabis. Mr Allen contends the certificate was inadmissible because police did not comply with the prescribed method of delivery of the items to the ESR laboratory for testing.
Although some of the documents Mr Allen has filed suggest he is raising other grounds, he has confirmed in a memorandum that the inadmissibility of the certificate of analysis is the sole ground.
Background
The admissibility of certificates of analysis was and is governed by s 31 of the Misuse of Drugs Act. It read at the relevant time as follows:
31 Evidence of analysis
(1) For the purposes of this section, the term analyst means—
(a) any person who is designated by the Minister by notice in the Gazette as the analyst in charge of an approved laboratory; or
(b) any person who works in an approved laboratory and who is authorised, by the analyst in charge of that laboratory, to act as an analyst for the purposes of this Act, either generally or in any particular case.
(2) Subject to subsections (3) and (4), 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, preparation, mixture, or article to which the certificate relates was received by the signatory personally in any case or (where the substance, preparation, mixture, or article was delivered in a sealed package or by registered post) by any other person (being a person who works in an approved laboratory and who is authorised, by the analyst in charge of that laboratory, to receive it), from the member of the Police or employee of the Police Department or officer of Customs named in the certificate, and that upon analysis that substance, preparation, mixture, or article was found to be or to contain a particular controlled drug (whether of a specified or an unspecified weight) or a particular prohibited plant, or a particular part of a particular prohibited plant, or a seed or fruit of a particular prohibited plant, specified or described in the certificate, 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.
(2A) Where the substance, preparation, mixture, or article was delivered in a sealed package or by registered post and received by any person (not being the person who signed the certificate but being a person who works in an approved laboratory and who is authorised, by the analyst in charge of that laboratory, to receive it) from any person referred to in subsection (2) of this section,—
(a) The person who made the analysis may give evidence of receipt by that other person of the substance, preparation, mixture, or article that is the subject of the analysis; and
(b) Such evidence shall, in the absence of evidence to the contrary, be admissible as sufficient proof of the proper receipt of the substance, preparation, mixture, or article by the person who made the analysis.
(3) A certificate referred to in subsection (2) 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.
(4) Notwithstanding anything in subsection (3) of this section, a certificate referred to in subsection (2) of this section shall not be admissible in evidence if the Court, either of its own motion or on the application of the defendant made either before or after the commencement of the hearing, in its discretion directs that the result of the analysis shall be disregarded unless that result is proved by the oral evidence of the person who made the analysis.
…
In support of his application for recall, Mr Allen has provided a statement from a retired forensic scientist who was the head of ESR’s Illicit Drugs Group in 1993. The scientist Mr Sutherland says that ESR’s position at the time was that in order for a certificate of analysis to be admissible under s 31 of the Misuse of Drugs Act 1975, suspected illicit drugs should be delivered to ESR either by registered post or hand delivered by police. A letter Mr Sutherland wrote at the time also mentions a third option to be used for larger items that could not be sent by registered post, namely NZ Courier Post with signature required.
In Mr Allen’s case, the police used Fastway Courier to deliver the material seized from his properties to ESR. Because ESR had doubts about whether this method of delivery complied with s 31, it decided the evidence of the test results should be given by the analyst rather than by means of a certificate.
The analyst in question duly prepared a written statement which Mr Sutherland forwarded to police with a covering letter explaining that because the method of delivery (Fastway Couriers) did not comply with s 31, the items had not been certified.
In his witness statement, the analyst said he had received from Mr N Baker (Fastway Courier) personally a sealed cardboard box from Fastway Couriers bearing the Fastway Courier label A705155. Attached to the box was an envelope containing an “Exhibits for Laboratory Examination” form. The box contained two large sealed plastic bags.
The statement goes on to describe the items from the plastic bags and the results of the analysis. It is clear from the statement that both bags contained file references to Mr Allen. One bag had plant material and the other seeds and plant debris. The contents were analysed. The seeds were found to be cannabis seeds and the plant material was cannabis plant. We pause here to interpolate that Mr Sutherland says having reviewed the file that he is “quite satisfied” with the work done by the analyst.
The form headed Exhibits for Laboratory Examination had been completed by the officer who had despatched the bags. It bears his signature and underneath that the signature of the Fastway driver Mr Baker. The form records that seeds were found at the rear of Mr Allen’s house and that the first bag contains approximately 30,000 seeds. It also states the second bag contained random samples taken from 1,250 plants located at Mr Allen’s farm property as the result of a helicopter operation.
After receiving the witness statement, the police contacted Mr Sutherland to request a certificate, saying they wanted to test the validity of Fastway Courier delivery. A certificate of analysis was then provided. Its contents mirror those in the witness statement.
According to Mr Allen, the prosecution only disclosed to his trial counsel, a Queen’s Counsel, on the day of the hearing that they were relying on the certificate and not calling the expert. He also claims that although police knew the method of delivery was non-compliant, this was not disclosed to the defence or the Judge and as a result the validity of the certificate was never tested and challenged. It should have been excluded and without it there was no evidence the material was cannabis.
It is a condition of admissibility under s 31(3)(a) that the certificate must be served on the defence seven clear days before the hearing at which the certificate is tendered, and secondly that the defendant has not three clear days before the hearing required the analyst to be called as a witness. Service on the day of the hearing would obviously be a breach of that requirement and render the certificate inadmissible.
However, Mr Allen does not specify which hearing he is referring to. O the basis of the information currently before us, it would appear to be the depositions hearing which according to a filenote of Mr Sutherland was on 15 April 1993. The certificate was also tendered at two jury trials held well after the certificate was served. The first jury trial was held in August 1993. The jury were unable to agree. The subsequent re-trial which resulted in a guilty verdict took place in January 1994.
Significantly for present purposes, at the commencement of the trial in 1994, there was a formal admission made on behalf of Mr Allen under s 369 of the Crimes Act 1961 that the cannabis plants found growing on his farm property were in fact cannabis and that seeds found at his residential property were in fact cannabis seeds.
The decision sought to be recalled
The defence run at trial was that the cannabis had been cultivated by someone else or had self-sown from previous crops planted by the person who had sold Mr Allen the property. As for the seeds located at his residential address, that had been left there by an associate.
On appeal, various arguments were advanced. They included challenges to the lawfulness of the search, juror bias, and complaints about disclosure. This Court found none of the grounds of appeal had been made out. It noted that Mr Allen had expended much time and effort in pursuing his statutory right of appeal and apparently felt a sense of injustice but concluded:[2]
In the end however it was for the jury to decide whether his knowledge of and responsibility for cultivation of the cannabis unarguably found on his property was established on the evidence at trial.
[2]At 10.
In his application, Mr Allen details the attempts he has made in the intervening years to clear his name. He does not however mention a complaint he made to the Independent Police Complaints Authority and the Authority’s report. The fact of the complaint and the existence of a report is briefly mentioned in material provided by a private investigator working for Mr Allen. The reference suggests the complaint may have included issues relating to ESR testing.
Analysis
The scope of this Court’s jurisdiction in criminal proceedings has recently been clarified in the decisions of Urhle v R and Lyon v R.[3]
[3]Urhle v R [2020] NZSC 62 at [25]–[29]; and Lyon v R (No 2) [2020] NZCA 430 at [8]–[9] citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
It is now established there are three categories of cases in which recall may be granted:
(a)There has been a legislative change or new decision since the hearing.
(b)A relevant authority or legislative provision was overlooked by the Court whose decision is sought to be recalled.
(c)For some other very special reason justice requires the judgment be recalled.
For important reasons of policy and principle explained in Lyon, recall is exceptional.[4] And that is especially so where as in this case, the focus of the application is not this Court’s decision but the trial itself and allegations of non‑disclosure. Mr Allen has not exhausted the appeal process. He has a statutory right to seek leave to appeal to the Supreme Court and he also has other avenues available to him such as the prerogative of mercy and the Criminal Cases Review Commission.
[4]At [6].
Further, the argument about the inadmissibility of the certificate is not particularly compelling. It faces some difficulties:
(a)The certificate appears to have been provided to the defence well in advance of the trial at which it was tendered.
(b)The certificate itself disclosed that the exhibits had been delivered by Fastway Courier.
(c)The formal admission made by Mr Allen at the beginning of the 1994 trial that the items found by police at his properties were cannabis.
(d)The documentation including the witness statement prepared by the analyst does not suggest any break in the chain of custody.
(e)The analyst who tested the items and signed the certificate was the same person who personally received the items when they were delivered to the laboratory. That was sufficient compliance with s 31(2). Mr Sutherland does not specify which part of s 31 he considers was breached. On the face of it, his interpretation of the provision appears misconceived.
(f)ESR policy changed and not it seems in response to any amendment to s 31. Mr Sutherland states large items delivered by normal courier with signature became acceptable. That being so, a claim that a miscarriage of justice has occurred because of the method of delivery is obviously problematic.
(g)Even if the certificate had been excluded and the analyst called to give evidence, his signed written evidence was to the same effect as the certificate.
(h)Mr Allen’s own evidence at trial. He testified that after the police raid, he himself found cannabis plots on his property. Further, that he knew the seeds in the bag were cannabis seeds because that was what the associate had told him and that was why he told the associate to remove them immediately which as it turned out later he wrongly thought the associate had done.
We are not persuaded there exists a very special reason warranting recall.
The application is accordingly declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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