Gladwin v The Queen
[2014] NZCA 165
•2 May 2014 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA567/2013 [2014] NZCA 165 |
| BETWEEN | JASON MYLES GLADWIN |
| AND | THE QUEEN |
| Hearing: | 1 April 2014 |
Court: | O’Regan P, Keane and Andrews JJ |
Counsel: | M W Ryan for Appellant |
Judgment: | 2 May 2014 at 3 pm |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
The appellant, Mr Gladwin, was convicted after a jury trial of one count of manufacturing methamphetamine (count 1 in the indictment) and three counts relating to possession of equipment and materials related to the manufacture of methamphetamine (counts 2, 3 and 4).[1] He was acquitted of a charge which was an alternative to the count of manufacturing methamphetamine on which he was convicted (count 1(A)).[2] He was also charged with possession of ammunition but was discharged under s 347 of the Crimes Act 1961 in respect of that charge. He had earlier pleaded guilty to a charge of cultivating cannabis plants. He was sentenced to a term of four and a half years’ imprisonment for manufacturing methamphetamine, with concurrent two year terms for the other methamphetamine-related charges and for the charge of cultivating cannabis.[3]
[1]R v Gladwin DC Auckland CRI-2010-090-3182, 21 February 2013.
[2]The alternative count was also a count of manufacturing methamphetamine, but in circumstances where the appellant was a reluctant participant in a manufacture undertaken by gang members. See [7]-[8] below.
[3]R v Gladwin DC Auckland CRI-2010-090-3182, 2 August 2013 [sentencing notes].
Mr Gladwin appeals against the conviction for manufacturing methamphetamine (count 1). He does not appeal against the other convictions. He also appeals against sentence, but only in the event that the conviction appeal is successful. His counsel, Mr Ryan, submitted that if the conviction appeal is successful, the Court should substitute a conviction for the alternative (less serious) count of manufacturing methamphetamine (count 1(A)) and quash the sentence imposed in respect of count 1 and then remit the matter to the District Court for resentencing.
The facts
The following summary of facts is based on the summary in the sentencing notes of the trial Judge, Judge Collins.
On 11 February 2010, the police executed a search warrant at the West Auckland address occupied by the appellant, his wife and his five year old child.[4] In a shed or garage area (a separate building from the actual dwelling on the property), a clandestine methamphetamine lab was found. If it was not fully equipped and operational then there was little, if anything, missing. The police found a large number of items which were in the basis of counts 2, 3 and 4 of the indictment. The evidence at the trial, which was not disputed by the appellant, was that methamphetamine had been manufactured on the appellant’s premises.
[4]The admissibility of evidence obtained as a result of the search was challenged on the basis that the search was unlawful, but that challenge failed and leave to appeal to this Court was declined: Gladwin v R [2012] NZCA 503.
The appellant’s position at trial was that he was not really responsible for the manufacturing because he had been stood over by gang members forcing him to allow them to use the premises to manufacture methamphetamine, and all the equipment, materials and precursors present belonged to the gang.
Also located adjacent to the clandestine lab was a cannabis grow room. The appellant suggested that he was solely responsible for the cannabis cultivation but was not responsible for the methamphetamine that had been manufactured right next door to it. The trial Judge described this as “somewhat stretching the bounds of plausibility”.[5]
The alternative count
[5]Sentencing notes, above n 3, at [3].
On account of the appellant’s narrative of events, the Judge required the Crown to add a count (count 1(A)) to the indictment which gave the jury a clear choice as to the view they took of the facts. That ruling was made after the Judge had determined that the defence of compulsion was not available on the facts and would not be left to the jury.
Following the trial, the Judge set out reasons for adding the alternative count:
[16] Concurrent with the view that I would not let compulsion go to the jury I was concerned about the dual basis on which count one could be presented to the jury. Firstly the jury could find the Crown case proved, i.e that Mr Gladwin was a willing participant, either on his own or with others, in the manufacturing process. In other words, he had involved himself free of threat from others. Secondly, on Mr Gladwin’s own narrative he had deliberately provided assistance, in the form of venue and power for the manufacturing, such as to make him liable for manufacturing methamphetamine as a secondary party pursuant to s 66(1)(b) Crimes Act. He did so, he claimed, on account of threats, but which I had ruled could not amount to compulsion.
[17] I concluded that to allow count 1 to go to the jury on a dual basis breached the principles contained in the Court of Appeal decisions of R v Shaw[6] and in R v Saggers.[7]
[18] If Mr Gladwin was to be convicted on count one there would be no way of knowing on what basis the jury had determined that liability. The competing narratives by which the jury could convict were quite different. I therefore directed pursuant to section 355 Crimes Act that the indictment be amended to include an alternative count of manufacturing methamphetamine. The Crown concurred in that approach and drafted the particulars in this way:
The “second cook”: providing access to his garage to those whom he knew would manufacture methamphetamine there.
[19] The jury were to be directed that they could only find the accused guilty of count one if they rejected his narrative and were satisfied beyond reasonable doubt that he was a willing participant in the manufacturing process. If they were not so satisfied they were to consider count 1(A) where it was open for them to convict if they were satisfied beyond reasonable doubt that Mr Gladwin had intentionally provided actual assistance in terms of the alleged particulars, albeit under pressure from threats.
[6]R v Shaw CA159/05, 22 November 2005.
[7]R v Saggers [2008] NZCA 364.
In his directions to the jury, the Judge made it clear to the jury that the trial involved an intensely factual issue about the nature of the appellant’s role in the alleged manufacturing. He emphasised to the jury that they should consider count 1(A) only if they had found the appellant not guilty on count 1.
Issue on appeal
The appellant was ultimately convicted on count 1. This meant the jury found the Crown had proved beyond reasonable doubt that the appellant was a willing participant in the manufacturing operation. The jury must have decided that the appellant’s alternative version, namely that he allowed the premises to be used by a gang for the manufacture of methamphetamine because he was being threatened by the gang, was not a reasonable possibility. The appellant’s appeal is founded on the proposition that the jury erred and that no reasonable jury could have concluded the appellant’s version of events was not a reasonable possibility.
Appellant’s submissions
The essential argument for the appellant is that his account of the standover tactics, partly corroborated by the fact that his car was found in circumstances that were consistent with his account of “taxing” by gang members (albeit this happened well after the search of the premises had occurred), his wife’s account of a 111 call and a previous lawyer for the appellant’s account of discussions with the police were compelling and ought to have been accepted by the jury.
Accordingly, the appellant submitted there is a lack of evidence to underpin the Crown case on Count 1. The majority of the Crown evidence supported the appellant’s alternative narrative. At a bare minimum there was enough evidence to enable the jury to draw two competing inferences from the same proved facts. In cases where juries have to choose between equally weighted inferences drawn from the same set of proved facts a reasonable jury, in choosing one of these inferences, can only be speculating. The evidence said to support the defence evidence, including evidence undisputed by both parties, the defence evidence, and Crown evidence said to support the defence case, is discussed below.
The undisputed evidence
Counsel for the appellant, Mr Ryan, accepted that there was no basis for dispute about the following aspects of the Crown case:
(a)When the police executed a search warrant for cannabis they located a clandestine lab for the manufacture of methamphetamine in a garage at the appellant’s address.
(b)The Environmental Science and Research (ESR) scientist, Ms Mayo, confirmed that swabs revealed evidence consistent with the manufacturing of methamphetamine in the garage.
(c)The appellant’s fingerprints were found on a plastic bucket and a glass flask in the garage.
(d)The appellant made comments to the police during the search indicating that he was aware that there was an extractor fan in the corner of the garage and that he was not aware of any chemical reactions happening. He said to one of the officers conducting the search, in response to a question about the safety risk of the clan lab, “It’s not going to go boom”.
Defence evidence
The evidence given by the appellant was that he had a cannabis growing operation in the garage of his house, and that this had been adversely affected by the methamphetamine manufacturing that had gone on in the garage. Mr Ryan said the fact the methamphetamine manufacturing was damaging the cannabis crop was supportive of the appellant’s view that the manufacturing was not something he was undertaking or that he was willingly allowing to occur.
The appellant said a Mobil sports bag, found in the appellant’s garage and containing items consistent with methamphetamine manufacturing was not his, and had the name of another person in it.
The appellant said he had been stood over by gang members because he owed the gang money ($20,000). He said that he had told the police who these gang members were. The appellant recounted an event when gang members came to the house and assaulted him. During the assault he called out to his wife to call the police and she made a 111 call. However, at the appellant’s instigation she terminated that call so the police did not come to the address. He said this event illustrated the pressure he was under from the gang.
The appellant said the gang had taken his car. He said he had been the subject of “taxing”, whereby a gang takes property owned by a person as a form of punishment (in this case, for alleged non-payment of a debt).
The appellant’s wife confirmed the circumstances leading to the 111 call and a recording of it was played to the jury. The appellant’s wife also spoke about the gang members taking the car belonging to the appellant. She said she was dismissed from her employment when it became known that gang members had taken the car.
A lawyer who had previously acted for the appellant, Mr Corby, also gave evidence to the effect that he had had discussions with the police and had provided the names of the gang members involved in the standover tactics. Mr Corby’s version of events was that the police already knew who these people were. This was also said to corroborate the “standover” version of events.
Crown evidence said to support the appellant’s version
Mr Ryan argued that the appellant’s contention that the clan lab was operated by a gang who had forced him to allow them to use the garage was supported by both Crown and defence evidence. In addition to the defence evidence referred to above, he relied on:
(a)The fact that clan labs are portable and that the items found in the garage were consistent with a portable clan lab, as confirmed by the ESR scientist, Ms Mayo.
(b)Ms Mayo’s confirmation that the analysis carried out by ESR could not confirm who was responsible for the methamphetamine manufacturing in the garage.
(c)The evidence of a fingerprint expert, Mr Cole, to the effect that a fingerprint other than the appellant’s was also found on glassware found at the scene, and that this indicated that someone else (not identified) had handled the item.
(d)The confirmation by Mr Cole that in the methamphetamine manufacturing process glass vessels are subject to extreme heat, which made it less likely for a fingerprint to remain.
(e)The evidence of a Crown witness, Constable Grace, as to the answers given by the appellant during an interview. During that interview the appellant confirmed that the garage was his and that he was the only person with a key, and declined to answer questions as to who owned items in the garage, why there was a security camera in the bedroom window and whether his fingerprints would be found on the containers in the garage. Constable Grace also confirmed that he had not submitted a set of scales located at the address for fingerprint examination.
(f)The evidence of Constable Grace about the Mobil bag. He confirmed that there had not been any inquiries to establish its ownership.
(g)Constable Grace also gave evidence of communications between him and Mr Corby. Mr Ryan said that this confirmed Mr Corby’s evidence, but a reading of Constable Grace’s evidence does not support that interpretation.
(h)The evidence Constable Grace gave relating to the fact that the appellant’s car was found being driven by a known gang member. This was said to corroborate his evidence that he had been stood over by a gang member and had been subject to “taxing”. Mr Ryan said Constable Grace confirmed that the gang member had the car because of taxing. In fact, the constable confirmed that Mr Gladwin had told him that the car had been taken as a result of taxing, rather than confirming that there had been any taxing.
Respondent’s submissions
Counsel for the respondent, Ms O’Sullivan, submitted the jury was entitled to reasonably have found the accused guilty of count 1 on the indictment on the evidence at trial. The jury was entitled to consider that the appellant’s alternative narrative did not raise a reasonable doubt as to the proof of the elements of count 1.
Ms O’Sullivan said there was a wealth of evidence to support the Crown case that the appellant was involved in manufacturing methamphetamine. She said the jury was entitled to reject the appellant’s explanations and evidence. If the jury found his evidence to lack either credibility or reliability then the jury was entitled, properly, to put that evidence to one side and to place no weight upon it. Evidence considered by a jury as lacking in credibility does not necessarily raise a reasonable doubt simply by having been adduced at trial.
Ms O’Sullivan highlighted a number of other factors the jury could have taken into account in rejecting the appellant’s explanations, including:
(a)The implausibility of the appellant’s account that he owed a gang $20,000, but the fact he was not doing everything possible to remedy the debt.
(b)The evidence of the appellant’s wife was unworthy of belief and her actions were inconsistent with her professed state of terror and depression.
(c)The narrative itself was contrary to logic and common sense.
(d)The implausibility of the appellant’s contention that the gang had no interest in his cannabis set up, despite cannabis being a known valuable commodity.
(e)The implausibility of the explanation given by the appellant of the reason his fingerprint was on glassware.
(f)Inconsistent with his explanation about the glassware the appellant gave evidence that he did not tend to his cannabis out of fear of going into the garage.
(g)A lack of credibility in the other evidence of the appellant which suggested minimisation of his role in giving his account.
Ms O’Sullivan submitted that the evidence relied on by the appellant to support his alternative narrative lacked the probity submitted by the appellant. The Crown case also relied on the following factors, some of which do not appear to be contested by the appellant:
(a)The appellant used the garage and said he was the only one with a key to it.
(b)Leaving his fingerprint on the glassware used in the clan lab was evidence consistent with the appellant’s involvement in the manufacturing.
(c)The appellant purchased toluene for the operation.
(d)The appellant admitted producing cannabis in the garage himself.
(e)The proximity of the clan lab to the appellant’s cannabis.
(f)The appellant knew about the operation and some detail of the set up (for example, his knowledge of the extractor fan).
(g)The appellant was found with 215 milligrams of white powder in his wallet containing methamphetamine and admitted to using the drug.
(h)The appellant had $1500 cash in a bedside drawer at the time of the search, a lot of equity in his house, and a boat and other luxuries. The cannabis cultivation equipment was also valuable. The fact he had these financial resources made his non-payment of the alleged debt, given the alleged consequences, implausible.
Appeal standard
The relevant statutory provision is s 385 of the Crimes Act 1961, now repealed. The section states that the Court of Appeal must allow an appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[8]
[8]Crimes Act 1961, s 385(1)(a).
In Owen v R, the Supreme Court summarised the test as follows:[9]
The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.
Our analysis
The appellant’s alternative narrative
[9]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
Many of the appellant’s arguments in support of this appeal do not in fact point to an unreasonable or unsupported verdict. Some of the arguments, at best, indicate that the evidence of the Crown witnesses was not inconsistent with the appellant’s narrative. That does not, however, lead to a conclusion that a jury acting reasonably must have accepted the appellant’s narrative.
For example, the appellant placed weight on the evidence of the Crown’s expert witness, the ESR scientist, Ms Mayo, confirming that clan labs are portable, and that the analysis of the lab could not determine who was responsible for the manufacturing of methamphetamine. He said this evidence corroborated his alternative version of events. But the fact that the clan lab was potentially portable is not inconsistent with the Crown case that the appellant was manufacturing methamphetamine. The same can be said about the fact that the analysis did not provide forensic evidence identifying those involved in manufacturing methamphetamine.
Similarly, the appellant’s evidence of others’ involvement, by virtue of other fingerprints on the glassware, and a Mobil bag with another person’s name in it, does not mean that a jury had to accept the appellant’s narrative as a reasonable possibility. We agree with Ms O’Sullivan that the participation in the operation of more than one person is not inconsistent with the appellant’s active and willing involvement.
We do not consider that Constable Grace’s evidence in chief provided strong support for the appellant’s argument that he had been stood over and effectively forced to allow gang members to use his garage. The evidence in chief detailed the initial search and the finding of cash and a white powder on Mr Gladwin’s person, and his arrest. It confirmed that, in the police interview, Mr Gladwin declined to answer questions about whether the equipment in the garage was his. While this evidence was not inconsistent with the appellant’s version of events, it did not mean that it was not open to jury acting reasonably to find the appellant guilty on count 1.
We also accept Ms O’Sullivan’s submission that the other evidence of Constable Grace did not confirm the appellant’s events as Mr Ryan suggested it did. For example, Mr Ryan submitted that Constable Grace confirmed that the appellant’s version of events in relation to him being taxed by having his Nissan car taken by a gang was correct. In fact, all Constable Grace confirmed was that the vehicle had been recovered stolen months after the search warrant was executed and it was in a gang member’s possession. He confirmed that gang members have a propensity to target vulnerable people and taxing them when they cannot pay the debts. He confirmed that the appellant said he was being taxed. But he did not confirm that the appellant actually was being taxed.
Mr Ryan said communications between Constable Grace and Mr Corby supported the appellant’s version. Constable Grace confirmed in cross-examination that he spoke with Mr Corby, but did not corroborate Mr Corby’s evidence that Mr Gladwin had identified the person responsible for the manufacturing.
Competing inferences
Mr Ryan submitted that in cases where juries have to choose between equally weighted inferences drawn from the same set of proved facts, a reasonable jury, in choosing one of these inferences, can only be speculating. We see that as too simplistic. Ms O’Sullivan referred us to the following statement by this Court in R v Seekamut:[10]
[21] Counsel has raised many possible alternative inferences consistent with innocence and has argued that those inferences must be preferred. If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable.
[10]R v Seekamut CA82/03, 10 July 2003. The respondent also cites R v Puttick (1985) 1 CRNZ 644 (CA) at 647.
We adopt that statement. We accept Ms O’Sullivan’s submission that the possibility of drawing different inferences from competing facts does not preclude the jury from drawing any inference at all. Whether an inference is proper or available inevitably depends on the jury’s own assessment of the evidence and of the appropriate weight to be attached to the evidence. The jury may consider only one inference is reasonably open on its assessment of the evidence, or that one inference is of much greater weight.
Jury direction
In his oral submissions, Mr Ryan pointed out that the Judge did not give a direction to the jury on inferences. He did not seek to raise this as an additional point of appeal, but said it was relevant to the principal issue. We do not consider that this omission was material in the context of the summing-up as a whole. The Judge gave clear directions on the competing cases and on the standard and burden of proof. The jury had clear guidance as to its task. We do not consider this point makes any difference to our analysis above.
Conclusion
We reject the appellant’s argument that the evidence supports his narrative so strongly that the jury could not reject his alternative scenario as a reasonable possibility. It is correct that at least some of the evidence is not inconsistent with the appellant’s version of events but that does not make it irrational for the jury to reject the appellant’s version as a reasonable possibility. There was sufficient evidence to support a finding that the Crown had proved its version of events beyond reasonable doubt. It was not irrational for the jury to reject the appellant’s alternative as a reasonable possibility. We agree with the trial Judge’s view that the appellant’s version stretched the bounds of plausibility.
The jury was given clear directions on the meaning of reasonable doubt by the trial Judge. We are not persuaded that no jury acting reasonably could have come to the conclusion that it did.
Result
For these reasons the appeal against conviction is dismissed. The appeal against sentence was to be pursued only if the appeal against conviction were successful. In the circumstances, it is also dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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