Brown v The Queen
[2012] NZCA 457
•4 October 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA3/2012 [2012] NZCA 457 |
| BETWEEN SHAUN KENNETH BROWN |
| AND THE QUEEN |
| Hearing: 11 September 2012 |
| Court: Arnold, Priestley and Ronald Young JJ |
| Counsel: No appearance for Appellant |
| Judgment: 4 October 2012 at 2 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
At a jury trial before Judge E P Paul, the appellant, Mr Brown, was found guilty of three counts under s 12A of the Misuse of Drugs Act 1975: possessing precursor substances for the manufacture of methamphetamine; possession of equipment capable of being used for the manufacture of methamphetamine; and possession of material capable of being used for the manufacture of methamphetamine.
The jury returned their verdict on 10 August 2011. On 1 December 2011 Mr Brown was sentenced to nine months’ home detention. Mr Brown’s appeal was filed on 4 January 2012.
Mr Brown did not appear in support of his conviction appeal. We set out below the circumstances giving rise to his failure to appear. However, we go on to consider his appeal based on his notice of appeal, which contained nine basic grounds and a number of sub‑grounds of appeal, the contents of a letter sent to the Court of Appeal on 23 December 2011, together with the contents of an affidavit sworn by him on 30 July 2012 and filed in this Court on 1 August 2012.
Procedural history
In a minute of 7 March 2012 Glazebrook J directed Mr Brown to:
(a) file full particulars of how the summing up was deficient by 23 March 2012;
(b) given his appeal raised issues about the conduct of trial counsel, comply with rr 12A(1) and 12A(2) of the Court of Appeal (Criminal) Rules 2001 within the timeframe set out in the rules; and
(c) given he indicated that he wished to adduce further evidence, comply with r 12B of the Court of Appeal (Criminal) Rules 2001.
Mr Brown did not comply with these directions. By minute of 4 July 2012, Randerson J noted that Mr Brown had suffered an accident in August of 2011 and had had surgery during the course of 2012. Having discussed the matter with Mr Brown, the Judge recorded that Mr Brown said that:
(a) the focus of the appeal was not on any error by trial counsel; and
(b) the major issue was lack of disclosure or late disclosure by the prosecution prior to trial.
The Judge, therefore, gave a series of directions including the fact that this appeal should be heard in Auckland on 12 September 2012.
The directions required Mr Brown to:
(a) file and serve full particulars of the grounds of appeal by 27 July 2012;
(b) if he wished to pursue the disclosure failure, file and serve an affidavit setting out his complaints about disclosure; and
(c) file and serve submissions in support of the appeal by 22 August 2012.
Mr Brown filed an affidavit in this Court on 1 August 2012. He has not filed and served particulars of his appeal grounds nor has he filed and served submissions. On Monday, 10 September 2012, Mr Brown left a telephone message with the Court of Appeal advising that his Aunt had died on the previous Saturday and that her funeral was 1.30 pm on Wednesday, 12 September in Hamilton. Although no application for an adjournment of the hearing on Wednesday was made by Mr Brown, we treated his telephone message as an application to adjourn the fixture set for Wednesday.
Mr Brown was, therefore, advised by this Court that his appeal would be heard on Tuesday, 11 September at either 11.45 am or 2.15 pm, whichever suited him better. Mr Brown responded by telephone message that he would have to make efforts to file a submission at the Court at the later time. He gave no indication whether he would be present on 11 September. He made no application to further adjourn the hearing. The matter was called in open court at 11.45 am and again at 2.15 pm on 11 September. Mr Brown did not appear nor has he filed any further submissions.
We now turn to the appeal itself.
Background
The offending
On 5 May 2007 Mr Brown and a friend, a Mr Chris Climo, were at Mr Climo’s property near Wellsford. There was a fire in a shed on the property. Both the appellant and Mr Climo were badly burnt. Mr Climo ultimately died as a result of the injuries he suffered. The appellant had extensive burns over 43 per cent of his body and was hospitalised for some time.
The Crown said that the appellant and Mr Climo were operating a methamphetamine laboratory at the property. The fire arose from the manufacturing process and began in a stove. The Crown case against Mr Brown was based on medical evidence, the fact that his fingerprints were found on a number of items from the shed, that there were items found in his vehicle relating to the production of methamphetamine and his inconsistent statements to the Police and others.
In a statement to the Police, Mr Brown said that when he arrived at Mr Climo’s address that day by chance he found Mr Climo on fire. The appellant said his burns were caused when he was trying to extinguish the fire on Mr Climo outside the shed. Medical evidence from the Crown at trial was said to rebut the appellant’s claim as to how he had suffered his burns, particularly to his hands.
The process to trial
The first trial began in March 2010 before Judge Hubble. Near the end of the trial the appellant applied to the Court to dismiss his counsel. The appellant made complaints relating to discovery of documents and cross‑examination. The Judge decided that the sensible thing was to abandon the trial given the appellant’s then counsel was placed in an impossible position. New counsel was appointed.
On 13 December 2010 Judge Perkins ruled on several pre‑trial matters.[1] The pre‑trial issues were:
(a) the admissibility of evidence procured by the Police as a result of a search of Mr Climo’s address and the search of a utility motor vehicle located there immediately after the fire;
(b) the admissibility of evidence that the appellant, when admitted to hospital after the fire, had methamphetamine in his blood;
(c) the admissibility of evidence of a social worker who had a conversation with the appellant at hospital that was said to be inculpatory; and
(d) the admissibility of the appellant’s evidence from his first trial in March 2010.
[1] R v Brown DC Auckland CRI-2008-044-2055, 13 December 2010.
The Crown did not proceed with the last application. Judge Perkins concluded that the evidence obtained as a result of the police search of Mr Climo’s address and the utility motor vehicle was admissible. The Judge ruled inadmissible the evidence of the blood sample taken from the accused and the evidence of the social worker.
The second trial did not commence until 1 August 2011. Prior to the empanelling of the jury, counsel for the appellant made an application for further disclosure of police communications evidence relating to calls made before and after the Police travelled to Mr Climo’s address once they were notified of the fire. The trial Judge, Judge Paul, ordered limited disclosure.
Later that same day trial counsel for the appellant made an application for leave to withdraw. That was because the appellant personally had filed applications with the Court seeking an interim stay and related orders arising from Judge Paul’s decision. Counsel felt she could no longer continue to act for Mr Brown given what she considered to be his implied criticisms of her work. The application for leave to withdraw was refused and counsel continued to act for Mr Brown at trial.
On 2 August (day two of the trial) a further issue was raised by Mr Brown’s counsel with Judge Paul relating to notebook entries of a Detective regarding telephone calls received and made by Police Communications on the day of the fire. The Judge concluded that while some of the information in the Detective’s notebook was relevant, it had already been discovered in other ways.
Later that same day counsel for Mr Brown made an application to challenge the search conducted by Constable Picknell of Mr Climo’s residence in Waimanu Road immediately after the fire. Judge Paul rejected the application and said in any event he considered Judge Perkins’ decision in December 2010 had resolved issues of the lawfulness of the search of the property.
This appeal
The first two grounds of appeal in Mr Brown’s notice of appeal relate to challenges to the pre‑trial rulings of Judge Perkins on 13 December 2010 and the rulings of Judge Paul on 1 and 2 August 2011 during the course of the trial.
The focus of the appellant’s complaint with respect to these decisions appears to relate to disclosure and in particular the disclosure of police communications arising from and during the time from when the Police discovered there had been a fire at Mr Climo’s residence through until and including the Police investigation at Mr Climo’s property.
Mr Brown’s complaint appears to be that the written records of the timing of various actions by police officers and the audio records obtained are not identical. One of the annexures to Mr Brown’s affidavit of 30 July 2012 is an explanation by counsel for the Crown of the reasons why the written records and audio records as to the timing of particular events at or about the time of the search are not necessarily the same.
Mr Brown has not provided any evidence or submissions that identify why, in the context of this case, the precise timing of various actions by the Police during the course of the day of the fire mattered.
As Judge Perkins identified in his decision relating to the challenge to the search of Mr Climo’s property, the Police knew a fire had caused serious injuries to two men. The Judge said that the Constable had an implied licence to go to the residence where the fire occurred as part of his normal police duties. Indeed, it was vital for him to do so “to ascertain that no other persons were present who may have been killed or injured”.
Further, there was ample evidence as a result of what the Constable immediately observed at that residence to invoke s 18(2) of the Misuse of Drugs Act and, once it became clear from the officer’s observations that there may be dangers from chemicals “either by further fire or contamination”, to invoke s 103(1) of the Hazardous Substances and New Organisms Act 1996. We cannot see that the timing of various police communications that day is of any relevance to Judge Perkins’ decision to admit the evidence found at the property and in the car.
Judge Paul’s rulings in part related to the provision of information regarding police communications. Judge Paul made orders that three of 11 disputed communications be disclosed to Mr Brown. The Judge made it clear, however, that the three communications had already been disclosed to Mr Brown and in any event the Judge could not understand the relevance of those communications to the prosecution. As to the other communications, which he refused to order disclosure of, he said they did not relate to the appellant and the charges. The appellant has not identified any error in either Judge’s decision. We reject these grounds of appeal.
The third ground of appeal relates to complaints by Mr Brown about his trial counsel’s conduct. Glazebrook J, as we have noted,[2] advised Mr Brown of his obligations, should he wish to raise any counsel error as an appeal ground. We note in the appellant’s discussion with Randerson J, Mr Brown made it clear that he did not allege error by trial counsel. Mr Brown has not produced any evidence indicating that trial counsel error resulted in a miscarriage of justice. We reject this ground of appeal.
[2] At [4].
The fourth ground of appeal is said to arise from Judge Hubble’s minute of 26 March 2010. The Judge noted that the appellant wanted his counsel dismissed, that there was a “mountain of documents” the appellant wanted further access to and he also wanted cross‑examination on blood testing and the chain of evidence relating to the blood sample.
It is not clear from the appellant’s notice of appeal what this ground of appeal relates to. It appears to be a complaint about trial counsel’s conduct of the first trial. We have already observed that Mr Brown did not adduce any evidence as to trial counsel error. In any event the trial that began before Judge Hubble, to which this objection relates, did not result in a verdict by the jury because the trial ended shortly after it began. We reject this ground of appeal.
Ground five relates to a complaint about the actions of the Crown prosecutor at the August 2011 trial. The appellant says the Crown prosecutor “resorted to a line of questioning that was not evidentially founded in some instances and/or antagonistic in others, thereby improperly striving for a conviction”. No detail of the complaint is made. Having reviewed the evidence of the trial we can see nothing in the Crown prosecutor’s conduct that could give rise to a miscarriage of justice. We reject this ground of appeal.
The sixth ground of appeal is that the Judge failed to properly intervene when objections by defence counsel were made, thereby effectively ignoring the objections. We have reviewed the evidence at trial. We are satisfied that no proper complaint can be made that the Judge failed to intervene when he should have.
Ms Lowe, counsel for the appellant, made on our review of the evidence eight objections during the course of the trial. Most related to the Crown inappropriately leading their witnesses. On most, if not all of those occasions, the Judge directed the Crown to rephrase their question. One objection with respect to the evidence of Constable Picknell was dealt with by a ruling of the Judge dated 2 August 2011. The Judge rejected one of Ms Lowe’s objections to Crown cross‑examination of a defence witness on the ground that the questions were not relevant. The Judge ruled they were. Finally, the Crown objected in turn to Ms Lowe leading one of the defence witnesses. This objection was allowed and the question rephrased.
As can be seen most of the objections related to technical questions with respect to leading witnesses’ evidence. Mostly, counsel for the appellant was successful in her objections. There is no basis, therefore, for any claim of unfair treatment of the appellant by the trial Judge. We reject this ground of appeal.
The seventh ground of appeal is that the Crown prosecutor made assertions that were not properly proven or were speculative in his final address to the jury. We have reviewed the closing address for the Crown. We can see nothing in the closing address that involves improper assertions or speculative assertions. We reject this ground of appeal.
As to the Judge’s summing up, it is said that it was deficient in a number of areas. This was the eighth ground of appeal. The deficiencies alleged were:
(a) That the Judge did not advise the jury that inappropriate comments made by the prosecutor should not be taken into account. We have concluded that there were no comments in this category.
(b) That the prosecutor was permitted to make “generic submissions” rather than those “particularised to a factual platform” without comment by the Judge. We consider there is nothing in the prosecutor’s address that the Judge was required to correct or criticise.
(c) A number of defence counsel submissions were sidelined by the Judge. The Judge’s summing up favoured the Crown. We reject that submission. The Judge treated both sides fairly and equally. As counsel for the respondent has pointed out, the Judge’s summary of the prosecution and defence case occupied a similar time. The Judge made three comments relating to the defence closing. Firstly, counsel for the appellant made submissions relating to the comparison between the appellant’s fingerprints and the lifts that were taken at the scene of the fire. The Judge said to the jury “that point probably needs clarification really”. He then referred the jury to the evidence given in relation to the fingerprints. No objection could be taken to the Judge’s referring the jury to the relevant evidence. That was the Judge’s job. Secondly, the Judge also referred to counsel for the appellant’s assertion in her closing address that there was no evidence that methamphetamine had been produced at the shed. The Judge referred the jury to the evidence of the ESR scientist. As the Crown said, that witness had given uncontradicted evidence that methamphetamine had been produced at the shed. Immediately after this comment the Judge said that counsel for the appellant “had made some useful points as to the toluene that was only found on Mr Climo’s jeans” contrasting that with the fact that no Toluene was found on Mr Brown’s jeans. This was a fair and balanced response by the Judge. The third matter commented on by the Judge related to the evidence of Ms Gandel. With respect to submissions made by counsel for the appellant in relation to Ms Gandel, the Judge said:
Again I have talked to you about credibility and reliability. You know Ms Natalie Gandel was prepared to lie to the police about what happened. You put that into the mix in terms of assessing whether you accept she is the sort of person who is a credible, reliable and an honest witness.
This was an appropriate comment for the Judge to make. The jury were entitled to and indeed appropriately took into account in assessing Ms Gandel’s credibility the fact that she had lied to the Police about what happened. This was a lie relating directly to the issues before the jury.
The summary of the Crown case occupied just over two pages of the Judge’s summing up and the summary of the defence case just over two pages of the Judge’s summing up. There is nothing else about the Judge’s summing up that could be the subject of complaint. As the respondent submitted, it was an orthodox summing up covering the standard matters required of a Judge in such circumstances, and was fair and balanced. We reject this ground of appeal.
The final ground of appeal appears to be primarily a claim that the verdict was unreasonable and could not be supported having regard to the evidence. We consider there was ample evidence upon which the appellant could have been convicted.
Mr Brown accepted that he had been at Mr Climo’s residence that day. His evidence was that he was a good Samaritan who had come upon Mr Climo on fire and had tried to put out the fire. As a result he said he suffered the burns observed. The medical evidence, however, from expert witnesses was that the appellant’s injuries were very unlikely to have occurred in the way he described.
The appellant’s fingerprints were identified on 12 items that came from the shed. Eight of the items that had the appellant’s fingerprints on them were capable of being, or are predominantly, used for the production of methamphetamine, and on some methamphetamine itself had been detected. The medical evidence also established that the appellant’s fingerprints must have been there before his fingers had been burnt.
The appellant’s fingerprints were also found on a bottle that contained contact NT, a substance containing pseudoephedrine, which is used in the manufacture of methamphetamine. The bottle was contained in a Swiss duty free bag. The appellant’s girlfriend had just returned from Switzerland.
The appellant’s vehicle was also searched. Underneath the area behind the passenger seat there was a bottle found containing hypophosphorus acid, which is also used in the production of methamphetamine. This is not a common household item. Also found in the appellant’s vehicle was a plastic funnel with white residue methamphetamine on it. There was glassware capable of being used to manufacture methamphetamine also in the vehicle.
The appellant gave several versions of what happened that day. He told the nurse at the medical centre that he had thrown petrol on a bonfire but then later, some months afterward, he said that, when he had arrived at the property, he was “confronted with Chris on fire”, had tried to put the fire out and was injured in the process. This illustrates there was ample evidence upon which the jury could have convicted the appellant. We reject this ground of appeal.
Result
For the reasons given, therefore, the appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0
0
0