Booth v The Queen

[2005] NZCA 183

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/05

THE QUEEN

v

KEVIN ANTHONY BOOTH

Hearing:16 June 2005

Court:Glazebrook, Randerson and Williams JJ

Counsel:T M Petherick and J Paterson for Appellant

M D Downs for Crown

Judgment:18 July 2005 

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Randerson J)

Introduction

[1]        On 4 March 2005 the appellant was convicted after trial in the District Court on a single count of possession of cannabis for supply on 6 May 2004 at Napier.  He was tried before Judge Adeane and a jury.  The Judge subsequently sentenced him to five years imprisonment.  His two co-offenders, a Mr Hart and a Mr Milner, pleaded guilty and were separately sentenced.

[2]        The signal feature of the case is that two separate and distinct quantities of cannabis were found by police at the subject property.  The first was found in the appellant’s car and weighed 284 grams.  The appellant acknowledged that the cannabis was his but stated it was for his personal use.  The second quantity of cannabis was found elsewhere on the property and weighed approximately 35 kilograms.  The appellant denied any connection with this much larger quantity of cannabis. 

[3]        In his appeal against conviction, the main submission by Mr Petherick on his behalf was that there should have been two separate counts in the indictment, one for each of the quantities of cannabis.  The Judge accepted for sentencing purposes that the appellant was in possession of both quantities of cannabis for supply and sentenced him on that basis.  Mr Petherick submitted that it was not possible from the jury’s verdict on the single count to determine whether the jury based its verdict solely on the smaller quantity or whether the jury was satisfied that the appellant had both quantities of cannabis in his possession for the purpose of supply.

[4]        Alternatively, Mr Petherick submitted that the Judge should have directed the jury that they had to be unanimous about the extent of the cannabis in the appellant’s possession.

Background facts

[5]        The appellant had casual work as a farm hand on a property in the Hawkes Bay.  He stayed there from time to time with the two co-accused who were employed to work on the same property.  A search warrant was executed by the police on 6 May 2004.  In one of two vehicles owned by the appellant, 264 grams of cannabis head was found in various packages and in the other a smaller quantity of mixed cannabis material making a total of 284 grams.  A pair of electronic scales was also found in one of the vehicles.  Other offending items were found amongst the personal effects of the two co-accused. 

[6]        Some distance away from the dwelling house, much larger quantities of cannabis were found in a disused pig pen and an old horse float.  The police located there 15.2 kilograms of high quality cannabis heads, 8 kilograms of mixed cannabis leaf and 12.5 kilograms of low quality cannabis known as cabbage.  In the pig pen was a shade cloth on which 2.5 kilograms of cannabis leaf was drying.  The cannabis found in the horse float (which was secured with locks) was in various containers including nine snaplock bags of high quality cannabis, uniformly packaged in lots of approximately 30 grams.

[7]        Around the property there were miscellaneous other items commonly associated with cannabis cultivation, cannabis preparation or cannabis packaging for commercial purposes.  These included items such as vegetable dryers and other packing equipment.  The total value of the cannabis as found by the Judge for sentencing purposes ranged between $158,500 and $270,000.  A detective with many years experience in relation to drug offending in the Hawkes Bay stated that, to his knowledge, this was the largest seizure of cannabis in the Hawkes Bay at that time.

[8]        The appellant admitted possession of the smaller (284 grams) quantity of cannabis but maintained that it was for his personal use and not for the purpose of supply.  He denied any connection with the larger quantity of cannabis.  It is common ground that if he had such a large quantity in his possession it could not sensibly be argued that it was not for the purpose of supply.  No attempt was made by the appellant to so argue.

[9]        A major difficulty for the appellant in advancing his case that he had no connection with the larger quantity of cannabis was the discovery of his fingerprints on five of the plastic bags in which the cannabis was contained.  The explanation given by the appellant for the discovery of these fingerprints was seriously, if not wholly, undermined during cross-examination of the appellant. 

The summing up

[10]     There is no issue taken with the summing up by the Judge other than in relation to the direction on unanimity.  The Judge correctly identified the elements of the charge which the Crown was required to prove beyond reasonable doubt.  The Judge also correctly directed the jury on the presumption of possession for supply which (in the case of cannabis) is triggered when an accused has possession of 28 grams or more. 

[11]     In relation to the issue of possession, the Judge directed the jury as follows:

Now in this case the issue of possession or more particularly the extent of Mr Booth’s possession might well be the starting point for your deliberations.  First of all of course he has admitted possession of 284 grams.  He is already ten times the amount at which he is deemed to be in possession for the purpose of sale, unless he satisfies you more likely than not that none of those 284 grams were intended for sale.

But there is a second possibility in this case.  The Crown submits that the balance of a total of 35.7 kilograms found in other parts of the property, particularly in that horse transporter and the piggery, were also in his possession.  The question then becomes are you satisfied that he had at least a share of possession of the whole lot as well as exclusive possession of his own “persy” I think he calls it – a nickname for personal supply?

The question of how much possession he had or what was the extent of his possession is one which has to be established beyond reasonable doubt.  If you are satisfied to that standard i.e. that he had possession only of 284 grams, then you will proceed to decide whether he has satisfied you more likely than not that none of that was for sale within that framework.

If on the other hand you consider that he was involved with the whole 35 odd kilograms of cannabis then you can see how his position in your eyes must be very different and his task that much more difficulty.

In either case the onus will be on him to show you on the balance of probabilities that no part of the cannabis was intended for sale.  But as I say it might be best for you to begin by deciding just to what extent you are satisfied he had possession, satisfied beyond reasonable doubt because after that you decision, let us say, will be taken in light of quite different circumstances.

[12]     The Judge continued with his summing up by summarising the case for the Crown and the appellant and ended with a standard direction on the need for unanimity of verdict.  The Judge said:

When you have reached your verdict, you will come back into Court, Mr Foreman you will be invited to stand.  First of all there will be an inquiry whether the verdict about to be announced is the unanimous verdict of all 12 jurors and on an indication that it is then Mr Foreman you will be asked whether the accused is found guilty or not guilty.  I do emphasise that it must be a unanimous verdict, whatever it might be.  There is talk in New Zealand about majority verdicts.  We may well be moving that way but we have not got there yet and as at today any verdict must be the unanimous verdict of all twelve jurors.

[13]     The Judge did not direct the jury that they must be satisfied unanimously about the extent of the appellant’s possession of cannabis i.e. as to whether he had only the smaller quantity in his possession or whether he also had possession of the larger quantity.

The Judge’s findings on sentencing

[14]     At the time of sentencing, Mr Petherick raised with the Judge the potential ambiguity of the jury’s verdict.  The Judge dealt with this in his sentencing notes in the following passage:

Arising from those matters, your counsel now submits that the jury verdict remains ambiguous and is consistent with a finding that you had possession of only 287 grams, even though the Jury rejected your claim that none of that was for sale.

Certainly the Jury was focused on the extent of your possession, as I had invited them to be at the beginning of their deliberations, because in my view the question whether you could rebut the presumption against you had very much to be considered in light of just what the Jury considered the proven facts about your possession, and the onus of showing possession was on the Crown to the standard beyond reasonable doubt.

The Jury was plainly focused on your involvement in the wider adventure because a question arose “does knowledge and/or awareness of the operation indicate possession.”  Given that you had never disputed possession of the cannabis which you claimed to be for your own use, there can be no doubt that the Jury was considering just what part, if any, you played in the activities in that pig pen or in the horse truck.

Theoretically it remains possible that the Jury considered that aspect of the matter, found that you were not in possession of any of the greater part of the cannabis crop, then returned to the cannabis which you had admitted possession of, that in your own vehicles, and because it was ten times the amount at which the presumption arises, might have convicted you of that single count on that basis.

But in my view that possibility is a theoretical one which can be put to one side in the realities of the case.

You see, there is one thing known about all of this, and that is that amongst the cannabis in the horse truck were these snap lock one ounce bags quite apparently packed for sale, and on those your fingerprints were found.  The explanation that you had borrowed these from your mother to pack pig meat and had lent some to your co-accused without appreciating their purposes is far fetched, as some clever cross examination on the subject fairly quickly demonstrated.

So here was an item of evidence going right to the heart of the larger commercial scheme – ounce bags of high quality cannabis ready for sale bearing your fingerprints and situated in amongst a much greater quantity of similar high quality material presumably destined for sale also – as that quantity could only be.

This vastly exceeded anything which could be suggested to be for personal use, except on the most cynical basis.  I have no hesitation in concluding that your possession extended to the great bulk of the cannabis which was found by the police on that day, excluding only the personal supplies found amongst your co-offenders personal effects.  So far as the rest of it is concerned, the correct conclusion on the evidence in my view is that you had custody of and control over it, that you were in possession and that as a result of that the Jury verdict concerning your purposes flowed inevitably from the enormous weight of the evidence against you.

[15]     The Judge considered that while it was a theoretical possibility that the jury reached its verdict solely upon the basis of the appellant’s possession of the smaller quantity of cannabis, this did not accord with “the realities of the case”.  The Judge concluded, for the reasons he gave, that the appellant was in possession of the larger quantity of cannabis as well as the smaller quantity.

The appellant’s submissions

[16]     Mr Petherick relied upon s 329 Crimes Act 1961 and in particular on subss (4) and (6) which provide in relation to counts in an indictment:

(4)     Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.

…

(6)Every count shall in general apply only to a single transaction.

[17]     Mr Petherick referred to a number of authorities.  This Court has held that a single count couched in general terms which encompasses more than one identifiable occasion on which the alleged offence was committed neither gives adequate particulars of a single offence nor identifies the transaction referred to, and therefore does not comply with subss (4):  R v P [1998] 3 NZLR 587, 590.

[18]     There, this Court was considering a representative count in a sexual case.  It was held in the circumstances, that the appellant had been deprived of the right to have each specific allegation separately tested under the criminal process.  There were six identified events which this Court found ought to have been the subject of six specific counts of rape.  The verdict of the jury did not necessarily reflect a unanimous view that any of the particular incidents took place.  There was a danger that the jury had differing views as to the proof of each incident but a common view that at least one incident had occurred.  The representative charge also prejudiced the appellant at sentencing because sentence was passed on the basis of multiple offending whereas the verdict was consistent with the commission of one rape only. 

[19]     Mr Petherick also referred to R v Mead [2002] 1 NZLR 594, in which this Court considered s 329 and the proper form of jury direction as to unanimity in a case where the appellants were charged with several counts of wilfully treating a child in a manner likely to cause unnecessary suffering, contrary to s 195 Crimes Act 1961. In her dissenting judgment, the Chief Justice canvassed the authorities both in New Zealand and in the United Kingdom in considerable depth. She observed at [19]:

Where the prosecution puts forward one basis for culpability, a general direction to the jury by the trial Judge that it must be unanimous on each element of the offence may well be sufficient, at least if those elements are identified during the course of the Judge’s summing up. … But where the case is put on a number of different bases, any of which could support a guilty verdict, more care is needed.

[20]     So:

Where a number of specific incidents or transactions or courses of conduct are included in the same count, there is a risk that all jurors will be satisfied of the proof of one, but not necessarily the same one.  The risk of division is increased when the legal ingredients of the offence require additional assessments of degree or quality:  Mead at [20].

[21]     The Chief Justice in Mead differed from the majority and found that, in the circumstances of the case, a direction as contemplated by the English Court of Appeal in R v Brown (Kevin) (1983) 79 Cr App R 115 should have been given.

[22]     In Brown, the accused was charged with fraudulently inducing four people to acquire shares in a company by making misleading statements.  The particulars given in the count identified five statements made by the accused and alleged to be known by him to be misleading, deceptive or false.  Any one of the statements particularised in the charge was sufficient to constitute the necessary inducement.  The Court of Appeal held that the trial Judge was in error in suggesting that the jury need not be unanimous in respect of any statement relied upon.  The jury ought to have been directed that they must all agree upon and identify at least one statement as being sufficient to constitute the offence. 

[23]     The Chief Justice also referred in Mead at [22] to cases where although the basis for guilt is put alternatively, the separate elements may be adequately identified for unanimous determination by a direction that the jury undertake a staged determination. The Chief Justice referred, by way of example, to R v Flynn (1985) 82 Cr App R 319. The accused in that case was charged with carrying an offensive weapon. The jury was instructed to consider first whether the knife carried was an offensive weapon itself and, only if not convinced on that score, to then consider whether the accused intended to use it to cause injury. Such a direction was found to have eliminated any risk that the jury would not be unanimous.

[24]     The Chief Justice concluded in Mead at [44]:

There is no inflexible rule requiring a specific direction as to unanimity on the different factual bases available. In most cases, it will be evident from the general direction as to the need for unanimity that such agreement is required. Whether a more elaborate direction is necessary will depend upon the live issues for jury determination and the risk of disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved if no such direction is given: Phillips at p 25 per Woolf LJ; Giannetto at p 6 per Kennedy LJ. In Mitchell the Court of Appeal proposed that the sufficiency of the direction be tested against the question:

[W]as there a realistic risk that some members of the jury might have found one of the ingredients in the charge proved and others another ingredient as the foundation of their verdict?

[25]     The Chief Justice found in Mead that the identified risk was very real given that different types of conduct were alleged over a period of time to have amounted to wilful ill treatment. 

[26]     The majority of the Court (Thomas and Anderson JJ) took a different view finding that it did not matter that some of the jurors might have concluded that the ill treatment took one form of cruelty while others found that it took a different form.  It was sufficient so long as all twelve jurors were satisfied beyond reasonable doubt that the accused wilfully ill-treated the child so as to cause him or her unnecessary suffering.  It is evident that the majority were influenced by the view that the ill‑treatment alleged was a course of conduct rather than ill-treatment in the form of isolated acts of cruelty which would more properly have been the subject of a separate charge (Thomas J at [74] and Anderson J at [107]).

[27]     Mr Petherick also referred to two other English cases R v Stosiek (1982) 4 Cr App R (S) 205 and R v Efionayi (1994) 16 Cr App R (S) 380.  These cases have drawn attention to the ambiguity likely to arise where there may be more than one factual basis for a jury’s verdict and to the responsibility of the prosecution to draft indictments in a way which will avoid the potential for ambiguities of this kind.  They are authority for the proposition that in such circumstances, Judges should approach sentencing on the version of the facts most favourable to the offender.  It is clear from s 24 Sentencing Act 2002 that the position in New Zealand is different and that the Judge may find facts for sentencing purposes in accordance with that section.

Crown submissions

[28]     For the Crown, Mr Downs approached his submissions on the understanding that Mr Petherick was implicitly arguing that the single count was duplicitous.  Referring to R v Crossan [1943] NZLR 454 (CA), R v Bennett [1981] 1 NZLR 519 (CA) and R v Accused [1991] 3 NZLR 513 (CA), he submitted that the charge contained in the indictment against the appellant was not bad for duplicity. He submitted that the Crown alleged a single crime of possession of cannabis for an identifiable purpose on a specific day. All of the cannabis was found on the same property on that occasion and it was not a case, he submitted, of the Crown alleging discrete and severable crimes within a single count.

[29]     Mr Downs also submitted that the appellant was not embarrassed in the conduct of his defence and there was no miscarriage of justice.  He pointed to the summing up in which the Judge made it clear that possession had to be proved by the Crown beyond reasonable doubt in relation to an identifiable quantity of cannabis before the presumption could apply.  He also submitted that the Judge had helpfully directed the jury to consider first the issue of the extent of the appellant’s possession of cannabis.  Mr Downs submitted that the trial was very short and the issues simple.  There was, he said, no real prospect of confusion or prejudice and in light of the strength of the Crown’s case, the Judge was entitled to find the appellant was in possession of all the cannabis.

Discussion

[30]     We propose to approach this matter by considering three separate issues:

(a)Whether separate counts were required for each of the separate quantities of cannabis.

(b)Whether the Judge correctly directed the jury on the issue of unanimity.

(c)Whether there was in the circumstances a real risk of a miscarriage of justice arising.

[31]     As to the form of the indictment, we accept the Crown’s submission that the circumstances of this case did not call for separate counts relating to each of the two quantities of cannabis.  For the purposes of s 329(4) and (6), the allegation of possession of cannabis for supply was a single transaction sufficiently identified by the single count.  The allegation of possession related to the discovery of cannabis on the same day and on the same farm property.  The fact that a small amount of cannabis was found in the appellant’s motor vehicles and that a much larger quantity was found elsewhere on the property does not detract from the conclusion that this was a single transaction. 

[32]     The Crown case was that the appellant had possession not only of the small quantity but also the larger quantity found elsewhere on the property.  An indictment of that kind is common in cases such as this where the execution of a search warrant frequently reveals quantities of a specific drug in a number of locations within a property.  The only feature which distinguishes the present case from the generality is the very large disparity between the 284 grams found in the appellant’s motor vehicles and the 35 kilograms found elsewhere on the property.  Although it might have been helpful, given this very large discrepancy, to have brought separate counts for the two separate quantities, the real question is whether the Judge correctly directed the jury as to how to approach the case.  We now turn to that question.

[33]     The Judge very carefully directed the jury on the issue of the extent of cannabis allegedly possessed by the appellant.  He suggested that this should be the starting point for the jury’s deliberations given that, as the Judge put it, the appellant’s task in endeavouring to prove on the balance of probabilities that he did not have the cannabis for the purpose of supply would be very much more difficult if the jury were satisfied that he had possession of the larger quantity as well as the smaller amount.  The Judge made it clear that it was for the Crown to establish beyond reasonable doubt the extent of the appellant’s possession.  If the jury were satisfied that the appellant had possession only of the smaller quantity, then they were to proceed to decide whether the appellant had satisfied them that it was more likely than not that none of that was for sale.  Alternatively, if the jury were satisfied that the appellant had possession of the larger quantity as well, then the issue of whether the appellant had demonstrated on the balance of probabilities that no part of the cannabis was intended for sale or supply was to be considered, as the Judge put it, “in light of quite different circumstances”. 

[34]     As already noted, the Judge’s direction as to unanimity was expressed in conventional terms but was given some emphasis at the conclusion of the summing up.  While there was no specific direction about the need for unanimity as to the alternative factual bases relied upon by the Crown, we agree with the views expressed by the Chief Justice in Mead that there is no inflexible rule requiring such a direction and that, in most cases, it will be evident from the general direction on unanimity that such agreement is required.  The question is whether, in the circumstances of this case and in the light of the direction given, there was a realistic or discernible risk of disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved:  Mead at [44].

[35]     In the light of the Judge’s careful direction about the need to determine first the extent of the cannabis possessed by the appellant before deciding whether he had overcome the presumption, we do not consider that, in the context of this short trial, there was any real risk of a lack of unanimity in the jury as to whether the essential ingredients of the offence had been proved and whether the presumption was overcome.  Nor do we consider there was any appreciable risk that the same factual foundation was not accepted by all jurors.  Although the jury was not directed (as was the case in Flynn) to proceed to the second possibility only if not satisfied as to the first, we do not consider any such direction was called for in the present case or that the failure to do so affects our conclusion.

[36]     It was plainly implicit in the Judge’s direction that a staged approach was required.  Once the extent of the possession was agreed upon, the next step was to consider whether, in relation to that quantity, the appellant had overcome the presumption for supply.  The Judge made it clear to the jury that if they were satisfied the appellant had possession of the larger quantity, they would approach the presumption issue quite differently.  In the way the trial was run, if the jury were satisfied the appellant had possession of the larger quantity, the presumption was not a live issue because the appellant had accepted there could be no realistic suggestion that a quantity as large as 35 kilograms could have been for his personal use and not for supply.

[37]     We accept the Crown submission, supported by the view of the trial Judge, that the evidence pointed strongly to the appellant having possession of both the smaller and larger quantities of cannabis discovered at the property.  He admitted possession of the smaller quantity and the discovery of his fingerprints on a number of the plastic bags containing the larger quantity was, in the absence of any convincing explanation for that fact, compelling evidence that he had possession of the larger quantity as well.  He also admitted showing one of his co-accused how to clone cannabis for cultivation purposes and that he was hoping to receive some return from that.  Those facts, coupled with the Judge’s clear direction about the need to determine the extent of the appellant’s possession, support our conclusion.

[38]     For similar reasons, we also accept the Crown’s submission that there was no prejudice to the appellant or miscarriage of justice in the present case.  The appellant was well aware of the evidence of the separate quantities of cannabis discovered at the farm and tailored his defence to respond separately to each.  It was not suggested at any stage of the trial either that there should have been separate counts or that the Judge should have specifically directed the jury as to the need for unanimity on the extent of cannabis possessed by the appellant.  That was an issue of fact which the jury was entitled to determine on the evidence.  On that point the Judge gave them clear and helpful advice as to the approach to be taken.

[39]     Neither counsel referred to the decision of the Supreme Court in Siloata v R (2004) 21 CRNZ 426 but we mention it for completeness.  The issue raised in that case was very different.  It was whether the trial judge had misdirected the jury by giving the impression that if they were unable to agree whether the accused had discharged the burden of proof on the presumption for supply, their verdict should be one of guilty.  That question does not arise from the summing up in this case. 

[40]     At [52] and [53] in Siloata Tipping J made some useful observations about a direction to the jury on the need for unanimity in relation to the presumption issue.  In the present case we consider the general direction on unanimity was sufficient to bring home to the jury that they must all be agreed on the issues of the extent of possession and the presumption.  If they were not all agreed on those points, it is difficult to see how they could all have been agreed on the final result.

Sentence appeal

[41]     It would have been helpful for sentencing purposes if there had been separate counts but the Judge determined as a fact that the appellant had possession of both the smaller and larger quantities of cannabis.  He was entitled to determine that issue based on the evidence at trial:  s 24(1) Sentencing Act 2002.   Any such factual determination must be made to the criminal standard of proof but the Judge was clearly satisfied beyond reasonable doubt given his statement that he had “no hesitation” in reaching his conclusion on this point.  It was not suggested that it was not open for the Judge to reach that factual conclusion on the evidence.

[42]     While in the circumstances of this case it might have been preferable for the Judge to have indicated in advance the factual basis on which he intended to sentence, Mr Petherick accepted that there was no additional evidence which he could have led on that point, given that the appellant and his mother had given evidence at trial. 

[43]     Mr Petherick also accepted that the sentence was within the available range if the factual circumstances were as determined by the Judge.  We agree that the sentence was entirely open to the Judge and it follows that the appeal against sentence must also be dismissed.

Solicitors:
Gresson Grayson, Hastings for Appellant
Crown Law Office, Wellington