Crofskey v Police
[2014] NZHC 1972
•20 August 2014
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2014-406-8 [2014] NZHC 1972
HELEN JAYNE CROFSKEY
v
NEW ZEALAND POLICE
Hearing: 19 August 2014 Counsel:
R M Gould for Appellant
A Mills for RespondentJudgment:
20 August 2014
JUDGMENT OF WILLIAMS J
Introduction
[1] On 2 July 2014, the appellant was convicted following summary trial on one charge of offering to supply methadone.1 She pleaded guilty to a charge of assault. She was discharged on one charge of intimidation. She was sentenced to 90 hours of community work on each charge and required to pay $54 of witness expenses.
[2] She now appeals against her conviction on the methadone charge.
Background facts
[3] Ms Crofskey, the appellant, and Mr Bright, the complainant are both on a methadone programme. They collect their doses from the same pharmacy in Picton.
1 Police v Crofskey DC Blenheim CRI-2013-6-1278, 2 July 2014.
CROFSKEY v NEW ZEALAND POLICE [2014] NZHC 1972 [20 August 2014]
[4] The prosecution case was that the appellant offered to supply Mr Bright with
her “takeaway” methadone on two occasions between 1 August 2013 and
20 November 2013. The appellant’s case was that she only had one conversation with Mr Bright about supply of methadone (when visiting his house) and that it was he that offered to purchase, rather than her offering to sell.
[5] During the first three months of a methadone programme, participants must consume their doses on the premises of the dispensing pharmacy. After that, “takeaway” doses can be supplied so that the participant does not have to attend the pharmacy every single day of the week. Both the appellant and Mr Bright were supplied with “takeaway” doses during the relevant period.
[6] The evidence of Marguerite Donaldson, who is Mr Bright’s partner, was that the appellant visited their home one morning after picking up her “takeaway” dose and offered to sell it to Mr Bright as she was short of money. Ms Donaldson was unsure as to the quantity offered, but thought it was around 20 ml at $1 per ml.
[7] On a second occasion, Ms Donaldson went in the car with Mr Bright to pick up his dose from the pharmacy. She says that the appellant approached Mr Bright outside the pharmacy and offered to sell him methadone. Again she was unsure as to the amount and price as she left Mr Bright alone to rebuff the appellant’s approaches.
[8] The appellant gave evidence that on the first occasion, rather than her offering to supply methadone, Mr Bright asked the appellant to supply him methadone in return for fixing an oil leak in her car.
[9] The appellant denied that the second incident at the pharmacy occurred at all. She says that Mr Bright and Ms Donaldson fabricated that allegation to get revenge after the assault that led to her guilty plea.
[10] In that third incident the appellant and her partner confronted Mr Bright and Ms Donaldson about an alleged $10 debt. This occurred in the carpark of Fresh Choice supermarket in Picton. After an argument ensured, the appellant struck
Mr Bright in the face, knocking out a tooth and breaking another. The prosecution case was that the appellant hit Mr Bright with a closed fist. The appellant said it was not a closed fist but a three-fingered slap. She said Mr Bright’s teeth were brittle and easily damaged as a result of his methadone regime (this is apparently a well understood side effect of methadone use).
Grounds of appeal
[11] The appellant offers two grounds of appeal:
(a) the Judge failed to consider the possibility that Ms Donaldson had misunderstood the conversations at the house and at the pharmacy as offers by the appellant rather than a request by Ms Donaldson; and
(b)the Judge improperly required the appellant to give evidence on the assault charge. The Judge then improperly used that evidence to draw adverse inferences about the appellant’s credibility.
Standard on appeal
[12] This appeal is governed by s 232 of the Criminal Procedure Act 2011. The appellant must satisfy the Court that “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.2 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected" or “has resulted in an unfair trial or a trial that was a nullity”.3
First ground of appeal: failure to consider mistake
[13] The appellant submits that the Judge failed to consider the possibility that, putting credibility to one side, Ms Donaldson might have misheard or misunderstood
the content of the conversations at the house and pharmacy regarding methadone.
2 Criminal Procedure Act 2011, s 232(2).
3 Section 232(4).
[14] This ground has no merit. The Judge clearly did turn his mind to the possibility that Ms Donaldson had misheard or misunderstood the contents of the conversation. He said:
[8] It was suggested to her, that is Ms Donaldson, that there were not offers of sale but she would not accept that was the position. It was suggested to her that maybe she has misinterpreted, or misheard, discussion and that she was wrongly concluding that this was an offer for supply but she would not accept that was the position. She was clear as to what happened.
[15] After rejecting the appellant’s account of events, the Judge was thus satisfied on the evidence before him he considered to be reliable (that of Mr Bright and especially the drug-free Ms Donaldson) that the appellant had in fact offered to supply methadone on both occasions:
[24] I reject your account of events Ms Crofskey. I put your evidence to one side. I look at the evidence that I think that I can rely upon, and I am satisfied that, on two occasions, you offered to supply methadone so I find the charge proven.
[16] The relevant passages of Ms Gould’s cross-examination are as follows:
Q. Your allegation is that you say that my client offered to sell her a measly little dose of methadone, which she needed to Wayne and are you quite sure that that’s what happened?
A. I’m 100 per cent sure that’s what she did because I confronted her
and I said that I did not want this going on in my house.
Q. And you’re sure that wasn’t about Wayne asking for methadone?
A. No not at all.
Q. Okay thank you.
A. Helen was short of money at that stage.
…
Q. … are you saying he didn’t ask Helen?
A. He didn’t ask Helen. She was the one that offered to give it to him, to sell it to him.
[17] The conclusion that the Judge reached was clearly open to him on the evidence. He saw the witnesses, heard their evidence and assessed their veracity.
He considered the possibility that Ms Donaldson was mistaken and rejected it. There is no miscarriage of justice here.
Failure to consider the appellant’s need for methadone
[18] The appellant makes the supplementary submission that in deciding Ms Donaldson was not mistaken, the Judge failed to consider Ms Donaldson’s evidence that it was implausible she would sell methadone because she needed it all, and the possibility that Ms Donaldson was overprotective of Mr Bright, and therefore more likely to misconstrue an overheard conversation in his favour.
[19] This is really an attack on Ms Donaldson’s credibility in another guise. The implausibility arises only if there is a doubt about the veracity of Ms Donaldson’s evidence. But as the Judge pointed out, she was the most credible witness of all. That was a judgement the trial Judge was best placed to make.
Conclusion
[20] The first ground of appeal is rejected.
Second ground of appeal
[21] The appellant submits that the Judge improperly required the appellant to give evidence on the assault charge, despite that fact that the charge had already been admitted and had not been put in issue. The Judge then improperly used the evidence to draw adverse inferences about the appellant’s credibility.
[22] This ground also is without merit. The appellant chose to give evidence. Ms Gould (as trial counsel) led evidence relating to the alleged supply of methadone. The Judge then interrupted Ms Gould:
The Court: Could you just pause there? Ms Gould, it might be useful, I
know that I have dismissed the other charge.
Ms Gould: Yes.
The Court: But I have to make findings I suppose as far as credibility is concerned, we have got a smack –
Ms Gould: Yes.
The Court: - a punch - Ms Gould: Yes.
The Court: - a slap, and also sort of general events - Ms Gould: Yes.
The Court: And also sort of general events, all right, that might assist, thanks.
Ms Gould: Yes thank you.
[23] Ms Gould could have rejected the proposal. She did not.
[24] In reality, Ms Donaldson gave a substantial amount of evidence relating to the assault incident. The appellant made that evidence relevant by suggesting it provided a motive for the police witnesses to lie.
[25] Counsel then cross-examined Ms Donaldson about the supermarket assault. In particular, her line of questioning suggested that Mr Bright had been aggressive and started the altercation. Ms Gould also cross-examined Mr Bright about his behaviour and the force used to dislodge his teeth.
[26] Counsel had also put in issue the credibility of the two witnesses by suggesting they had a motive to lie. Given that the appellant then chose to give evidence, it was open to her to provide her account of the assault happened. Ms Gould was not compelled to lead that evidence. She chose to lead it, presumably thinking (after an exchange with the Judge) it would assist her client. Indeed, the appellant, as I have said, suggested Mr Bright and Ms Donaldson had effectively fabricated the account of the methadone offers as “pay back”. That theory made what happened in the assault incident relevant.
[27] In the circumstances, it was not improper of the Judge to suggest that further evidence relating to the circumstances of the assault was relevant, or (having heard the evidence) to use it to draw conclusions on credibility.
Kidwell v Police
[28] The appellant submits that this is a situation analogous to Kidwell v Police.4
In that case the defendant was a 15 year old boy charged with stealing cash from video games machines. The two key pieces of evidence were an admission he made to a constable, who recorded it in a written statement, and an admission he had made to his father at the police station after his admission to the constable. The trial Judge refused to determine the admissibility of the written statement at a voir dire. As a consequence, the defendant then made the decision to give evidence. He acknowledged that he had made the admission to his father (evidence that had not otherwise been put before the court) but said that the admission was untrue.
[29] The trial Judge ultimately concluded that the written statement (and prior oral admission) was inadmissible, having been unfairly obtained. However the Judge convicted the defendant on the basis of the admission to his father, discounting the defendant’s oral evidence as completely unreliable, and concluding that the admission was genuine.
[30] On appeal, Eichelbaum J (as he then was) held that there had been a miscarriage of justice due to the following combination of factors:5
(a) the failure to hold a voir dire prevented the defendant from gaining an accurate appreciation of the evidence against him before he elected to give evidence;
(b)the Judge compared evidence from the defendant’s (inadmissible) written statement (that a boy named Dwyer – who it appears was a co- offender – was present when the alleged offence occurred) to the defendant’s oral evidence (he had not seen Dwyer in months until the week after the alleged offence) and concluded that Dwyer was in fact present; and
(c) the Judge failed to consider whether the defendant’s admission to his father at the police station was tainted by the fact that he had already made an (inadmissible) admission to the constable.
[31] Eichelbaum J noted that the Judge could have reached the conclusion in (b) without relying on inadmissible evidence. It appears he would not have found there was a miscarriage of justice on that ground alone.6 However, the failures in (a) and
(c) in combination did lead to a miscarriage of justice.7
[32] Here, the appellant seeks to draw an analogy between the improper reference to inadmissible evidence in Kidwell and the use of evidence relating to the assault charge in this case to draw adverse conclusions on the appellant’s credibility.
[33] The analogy is not available. Here, there is no suggestion that the evidence relating to the assault was inadmissible. Evidence relating to the assault was given by both sides. It provided relevant evidence as to why the complainant made his methadone allegations. Ms Donaldson and Mr Bright’s motivations for complaining to police formed an important part of the defence’s response to the police case.
Conclusion
[34] The appeal must be dismissed accordingly.
Williams J
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