Douglas v The Queen
[2018] NZCA 26
•28 February 2018 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA447/2014 [2018] NZCA 26 |
| BETWEEN | PAUL RICHARD DOUGLAS |
| AND | THE QUEEN |
| Hearing: | 30 November 2017 |
Court: | Winkelmann, Venning and Duffy JJ |
Counsel: | N P Chisnall for Appellant |
Judgment: | 28 February 2018 at 10.30 am |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
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REASONS OF THE COURT
(Given by Duffy J)
Following trial by jury in the District Court, Paul Douglas was found guilty and convicted of three charges[1] of possessing material, precursor substances and equipment with the intention of using them to manufacture methamphetamine. He was sentenced to two years and five months’ imprisonment.[2]
[1]Misuse of Drugs Act 1975, s 12A(2).
[2]R v Douglas DC Auckland CRI-2012-044-2675, 24 July 2014.
Mr Douglas now appeals against his conviction and sentence.
Facts
Mr Douglas was the legal occupant of a property subject to the execution of a search warrant. Mr Douglas and two women (Ms Bellaney and Ms Courtney) were present at the time of the search. The police located a number of precursor chemicals capable of being used to manufacture methamphetamine including hydrochloric acid, acetone, hypophosphorous acid, iodine, fuelite and white spirits. They also located equipment capable of being used for the manufacture of methamphetamine including:
(a)a single element electric hot plate bearing residues consistent with having been used in the manufacture of methamphetamine;
(b)a heavily corroded electric frying pan with its lid and cable;
(c)a piece of muslin cloth with a knot at one end;
(d)plastic funnels;
(e)a digital pH meter; and
(f)an electric pump.
In addition, a measuring cylinder, metal pot-stand and a single-element electric hot plate bearing residues consistent with having been used in the manufacture of methamphetamine were found over the boundary fence of the address in a bush area in an adjacent park.
Mr Douglas was arrested and taken to a police station for interviewing. He denied being involved in the manufacture of methamphetamine and provided alternative explanations for possession of the precursor substances, equipment and material.
At trial, the Crown called a number of witnesses including police officers involved in the search of the property, ESR scientists who attended the scene and analysed the items seized, a veterinary surgeon, and the police officer who interviewed Mr Douglas when he was arrested. Relevantly, there was expert evidence that the chemicals found at the property are used in the manufacture of methamphetamine.
Some prosecution evidence was admitted by consent under s 9 of the Evidence Act 2006, including that in 2006 police located hydrochloric acid and acetone at the same property, which was then occupied by Mr Douglas. In 2008, he pleaded guilty to a charge of possession of those substances as precursor substances intended for use in the manufacture of methamphetamine and was convicted thereon.[3]
[3]R v Douglas HC Auckland CRI-2006-044-1768, 10 June 2008.
Mr Douglas elected to give evidence. His defence as it emerged at trial was essentially that:
(a)The measuring cylinder, metal pot-stand and electric hot plate were found over the fence in a bush area in the park (this was uncontested), and he had no knowledge of these items.
(b)The electric pump was his but it was an air pump not a water pump. Air pumps have no common use in the manufacture of methamphetamine.
(c)The hydrochloric acid and pH meter were used to adjust the pH of his swimming pool. The Crown pointed out that his pool was empty and in a state of disrepair, to which he responded that he intended to paint it.
(d)The acetone found in the kitchen was for “the girls” to use for their nails, and Mr Douglas also used it as a paint thinner and for degreasing his car.
(e)He had no knowledge of the solid iodine flakes (eight grams) and hypophosphorous acid (35 milliliters) that were found outside near the barbecue. (It was accepted at trial that neither of these items has any common household use).
(f)He was not the only occupant of the house — Luther Adamson had lived downstairs with Eleanor Bellaney for some time, and at the time the search warrant was executed, Kylee Courtney was staying with Ms Bellaney.
(g)He had no knowledge of snaplock bags, scales, a cannabis bong and a methamphetamine pipe that were found downstairs at the address, as they were in a part of the house where the other occupants lived. However, these items formed no part of the charges on which the convictions rest.
(h)The dark grey damp powdery material found in a glass baking dish outside in the barbecue area was an attempt by Mr Douglas to convert what he thought was iodate into iodide so that he could trade it for the return of his racehorse, which he said had been inadvertently sold by the other part-owner of the horse. He suggested the iodide was to be used or could be used on horses’ hooves. The veterinary surgeon called by the Crown disputed this.
(i)There was no reaction vessel or pseudoephedrine located at the address, which are crucial to the manufacture of methamphetamine.
The defence called no other witnesses.
Grounds of appeal
Mr Douglas, who earlier represented himself in the appeal, filed a large volume of poorly organised material raising numerous grounds of appeal. When he was granted legal aid and Mr Chisnall was assigned as counsel, the appeal became more focussed. Mr Chisnall chose to concentrate primarily on what he contended was the wrongful admission of the earlier 2008 convictions for possession of precursor substances, and he raised an ancillary ground which questioned the adequacy of the trial Judge’s summing up, particularly of the directions on use of propensity evidence. Mr Chisnall also identified what he contended were other errors in the summing up. However, he acknowledged those were not material to the outcome of the verdicts. In light of this acknowledgement, we see no point in addressing those matters in detail. Moreover, we are satisfied there were no such errors the summing up.
Mr Chisnall declined to expand on Mr Douglas’ submissions and instead simply invited us to take them into account. Mr Douglas had said he would appear and address us on his submissions, but only Mr Chisnall appeared before us. Whilst we have read the material Mr Douglas filed, we consider it adds nothing to the outcome of his appeal. Accordingly, we confine our attention to Mr Chisnall’s arguments.
Appeal against conviction
The circumstantial evidence against Mr Douglas was strong. The acetone and the hydrochloric acid were openly stored on the property, and he never denied knowledge of their presence. Indeed, when he gave evidence he offered innocent explanations for those items. Whilst other persons stayed on the property, he was the legal occupant and therefore would have had some measure of control over what was stored on the property. There was no dispute materials the police found on the property could be used in the manufacture of methamphetamine. Mr Douglas’ defence largely hinged on the jury accepting his explanations for their presence, including how the hydrochloric acid and acetone were used. Accordingly, his previous conviction for possession of those chemicals as precursor substances in the manufacture of methamphetamine would have been weighty evidence against him.
Section 49 of the Evidence Act permits the admission of previous convictions, if not excluded by other provisions of the Act. Here the previous conviction was admitted with the consent of defence counsel.
Despite the admission by consent, Mr Chisnall submits the trial Judge was nevertheless obliged to assess whether the previous conviction satisfied the Act’s requirements for admission of propensity evidence, and had he done so, this evidence would not have been adduced.[4]
[4]See Marsich v R [2012] NZCA 470 at [20]; and Wilson v R [2015] NZCA 531 at [18].
We accept Mr Chisnall’s submission that the trial Judge had responsibility to ensure evidence that should plainly be excluded was not adduced at trial. The difficulty with this argument is that the issue on appeal is whether there has been a miscarriage of justice. Unless the evidence was wrongly admitted or defence counsel can be shown to have been in error in consenting to the admission of this evidence, this ground of appeal cannot succeed.
Here the previous conviction was plainly admissible as propensity evidence. It showed a tendency on the part of Mr Douglas to possess chemical ingredients for use in the manufacture of methamphetamine. We accept the Crown’s submissions that the conduct on which the previous conviction rests is essentially identical to the present conduct, and that this conduct is sufficiently out of the ordinary for a tendency to be apparent from one previous occasion. The Crown relies on Patten v R, where this Court found possession of precursors for methamphetamine manufacture is inherently unusual offending.[5]
[5]Patten v R [2014] NZCA 486 at [21].
Accordingly, the propensity evidence was of high probative value that was relevant to prove that, first, Mr Douglas had possession of the chemicals, and secondly, that he intended they be used for the manufacture of methamphetamine. Further, this value was not outweighed by any unfairly prejudicial effect the evidence may have had on the jury, as it was capable of being addressed by adequate directions from the trial Judge.[6]
[6]We discuss the adequacy of the trial Judge’s directions later in the judgment.
Regarding the issue of whether defence counsel was in error, the unchallenged evidence of trial counsel Michael Levett provides a reasonable explanation for why the previous conviction evidence was admitted by consent. Mr Levett deposed that in his view the circumstances of the previous conviction were extremely similar, including the fact the earlier offending also occurred at the same property. Mr Levett also deposes that once Mr Douglas advised him he had not committed the earlier offences at all and had only pleaded guilty as part of a plea bargain, Mr Levett then advised Mr Douglas the guilty plea meant he accepted the truth of the summary of facts. He explained to him that if the validity of the previous conviction were put in issue, the Crown would then be permitted to adduce evidence to support the conviction. This led Mr Levett to advise that denial of the previous offending would expose Mr Douglas to the Crown leading more prejudicial evidence against him than would be the case with admission of the conviction.
There was much sense in Mr Levett’s approach. Before Mr Douglas could give evidence denying the earlier offending, he faced s 49(2) of the Act, which sets a high threshold for when such evidence may be given. We doubt he could have passed that threshold. Secondly, had he been permitted to give such evidence, the Crown was likely to contest it and lead evidence to prove the conduct on which the previous conviction rested. The approach which Mr Douglas now sees as helpful was in fact hazardous. Mr Levett recognised this. He said that he advised Mr Douglas of such hazards, and at the time, Mr Douglas was content to rely on this advice.
Mr Levett was not called for cross-examination at the appeal hearing. Thus his evidence is unchallenged. It provides a plausible basis for why the previous conviction was admitted by consent.
Furthermore, at trial Mr Levett sought to make good use of this evidence in his closing address to the jury by suggesting that, given Mr Douglas’ previous conviction, one would expect him to hide precursor chemicals rather than storing them openly on the property which is how police found them. Whilst the jury did not accept this suggestion, we consider the approach Mr Levett took was one that was reasonably open to him. Accordingly, we see no basis for finding error on the part of Mr Levett.
It follows that we find the propensity evidence was properly admitted.
Regarding the ancillary ground of appeal, we see no error in the directions the trial Judge gave to the jury on propensity evidence. Mr Chisnall essentially argues that because the earlier possession of precursor substances was before the jury in the form of an admitted conviction rather than detailed evidence of the earlier offending, the jury could not consider the similarities between the earlier offence and the present alleged offending. Thus, there was a greater risk of the jury engaging in impermissible reasoning along the lines that because Mr Douglas committed the offence once before, he had done so again. Against that background, Mr Chisnall contends the trial Judge’s directions were insufficient to displace the prejudicial effect of the propensity evidence. We reject this submission.
As the Crown submitted, the directions covered the competing contentions of the Crown and the defence about the propensity evidence. The directions made it clear to the jury they could only use the propensity evidence once they were satisfied it showed a tendency on the part of Mr Douglas to act in a certain way. The trial Judge gave sufficient warning against the jury using the propensity evidence to engage in impermissible reasoning.
It follows that no appealable error follows from the admission of the previous convictions.
Appeal against sentence
We do not find the sentence of two years and five months’ imprisonment to be manifestly excessive. This was Mr Douglas’ second conviction for this type of offending. For the earlier offending, he received a sentence of one year and six months’ imprisonment.[7] The previous offending formed part of more serious offending for which Mr Douglas received three further convictions and was sentenced to a total sentence of three years’ imprisonment.[8] The Judge correctly recognised that with the present offending there were no mitigating circumstances, either in relation to the offending or Mr Douglas. The pre-sentence report was not helpful to him. Mr Douglas was described as having a high sense of entitlement and lack of remorse. In the circumstances, the sentence imposed was well within the range of available sentences.
Result
[7]R v Douglas, above n 3.
[8]The other offences were unlawful possession of a firearm, possession for supply of methamphetamine and amphetamine, and supply of methamphetamine and amphetamine.
The appeal against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent.
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