Hills v The Queen

[2004] NZCA 307

IN THE COURT OF APPEAL OF NEW ZEALAND

CA286/04

THE QUEEN

v

ROBERT HILLS

Hearing:7 December 2004

Court:O’Regan, Randerson and Doogue JJ

Counsel:P Brosnahan for Appellant

S P France for Crown

Judgment:13 December 2004 

JUDGMENT OF THE COURT

A        Application for leave to adduce further evidence allowed.

B        Appeal against conviction dismissed.

REASONS

(Given by Doogue J)

Introduction   

[1]       Robert Hills was convicted in the High Court at New Plymouth, following a trial before Potter J and a jury, of three drug offences, namely, possession of methamphetamine and LSD, both class A controlled drugs, and MDMA (Ecstasy), a class B controlled drug, all for the purpose of supply.

[2]       Robert Hills now appeals against his convictions and seeks leave to adduce further evidence in support of his appeal.

[3]       Two grounds of appeal are advanced on behalf of the appellant in support of his case that there has been a real risk of a miscarriage of justice, namely:

(a)       The unavailability of defence expert evidence to counter evidence from a Crown witness in re-examination that a chronic drug user would not usually use the combination of drugs found in the possession of the appellant for own use.  The appellant says the evidence took him by surprise.

(b)        A jury retirement of something in excess of ten hours in what was effectively a single-issue trial gives rise to an unsafe verdict.

[4]       The grounds of appeal are in the context of a trial where the appellant accepted that he had possession of 12 tablets of LSD, 11 tablets of Ecstasy and 1.923 grams of methamphetamine and the sole issue was whether possession was for supply.

[5]       The appellant seeks leave to adduce evidence from Ms Joanne Eagle, a drug and alcohol addictions counsellor working as a family therapist, and Mr David Duncan Chaloner, a drug and alcohol counsellor.

[6]       The respondent opposes the appeal against convictions.  The respondent does not oppose the application to adduce further evidence although it does take issue with the admissibility, cogency and relevancy of the evidence proffered.

Background

[7]       On 5 June 2003 the Police executed a search warrant at a New Plymouth address where the appellant was visiting.  He was located in one of the rooms at the address smoking methamphetamine.  When searched it was found that he had a metal tin within a vest pocket containing the LSD and Ecstasy tablets and the methamphetamine already mentioned.  There were four or five different varieties of both the LSD and Ecstasy tablets.  The methamphetamine was contained within six bags made up of three plastic point bags, weighing .130, .131 and .138 of a gram, and a further three bags, weighing .594, .852 and .996 of a gram.  The methamphetamine within each of the bags was also weighed, with the weights being slightly less than those just mentioned.  The appellant had $2,600 in cash in another pocket, bundled in rubber bands, consisting of $100 and $20 notes.  After declining to comment at the time, he later stated that the drugs were for his own use. 

[8]       The primary evidence relied upon by the Crown to negate the explanation that the drugs were for the appellant’s own use and to establish that it was for supply was that of a Detective, Mr Le Comte. A brief of his evidence was in the possession of the appellant’s counsel prior to 2 February 2004.  His evidence was to the effect that street dealers in drugs would often have a variety of different drugs and often a selection of the types of drugs for sale with the quantities being determined by the smallest accepted amount, or close to it, recognised by consumers.  The Detective’s brief also made it clear that in his opinion drug dealers and suppliers generally will be users themselves in some way shape or form, but that drugs for own use will usually be kept separate from drugs earmarked for sale, with them often being packaged in amounts different to those sold, often stored with utensils for ease of use and that often there will be signs of partial consumption.  He said that users would generally only carry the kind they and their associates intended to consume, be it for a particular event, day, evening or trip.  He noted that the appellant was carrying some four or possibly five different types of LSD, five different amounts of methamphetamine and five different varieties of Ecstasy tablets. 

[9]       As a result of what he had seen and based upon his experience the Detective said in his brief:

In my opinion the appearance, packaging, variety of drugs and variety of amounts is not consistent with personal use.

A proposition that the tin shown in photos #10 & #11 contains an array of drugs for personal use only defies logic, economics, accepted drug use patterns, common-sense and accepted ‘drug culture’.

[10]     No reasons were advanced in support of those opinions, in themselves inadmissible in the form stated, which led to the brief of evidence being substantially embellished orally at trial.  That has contributed to the trial events that have caused this appeal.  We deprecate the failure by the Crown to ensure that a proper brief by the Crown expert witness was not prepared stating his reasons for his conclusions.  If that had been done much of the lengthy and meandering examination-in-chief that resulted would have been avoided and the point now raised on this appeal almost certainly could not have arisen.

[11]     The appellant’s trial commenced on 26 April 2004.  Mr Le Comte gave evidence on the first and second days of the trial.  Much of his brief of evidence was read without objection.  He was asked to enlarge upon various aspects of the brief.  He expressed the view that the quantity of Ecstasy in the possession of the appellant would have been sufficient for a single user of Ecstasy over perhaps a three to six week period.  He further expressed the view that he would not expect a user to be using Ecstasy and LSD simultaneously and nor would he expect to find an Ecstasy user having such a variety of tablets.  Although he made it clear that he was talking generally he said it would defy common sense to purchase a number of different types of Ecstasy for personal use.  He regarded the Ecstasy tablets in the possession of the appellant as, in his experience, consistent with street dealings.  He also expressed the view generally that methamphetamine and Ecstasy are not consumed by the same user, although it was possible.  He said that he had never seen a personal user have the number of different patterns of Ecstasy and the number of tablets of Ecstasy, varying weights of methamphetamine and the three drugs together.  He said that methamphetamine for personal use was not generally packaged and stored in the way in which that found upon the appellant was packaged.  He regarded all of that as inconsistent with personal use.

[12]     Under cross-examination the Detective accepted that the bags of methamphetamine were of different weight and that he could not say that some of the product might not have been used, although he expressed the opinion that they hadn’t been tampered with.  He accepted that at least two cuts had been made in respect of one of the LSD tablets but said that was consistent not only with consumption but also with supply or sale.  He said that there was no set manual for drug dealing and that people who use and sell drugs don’t go by strict guidelines.  He had no awareness of LSD and Ecstasy being taken together.  He accepted that in the main his evidence was generalisation.  He accepted that there were always exceptions to the general position. 

[13]     In re-examination the following exchange occurred:

Just one matter: you mentioned a chronic user whose single and sole function was to obtain the particular drug.  Would you expect a chronic user of Methamphetamine for example to also be spending money on Ecstasy and LSD?…Absolutely not. 

Why not?….Because Methamphetamine when consumed to that point would override logic and business acumen and sale and supply of other drugs.  I would expect a chronic user of Methamphetamine to be involved in the distribution alone of Methamphetamine to facilitate their dependency.  Its unlikely that would be trusted with large amounts on tick because at that point of dependency they would consume rather than sell and because of the severe psychosis that it presents its not in line with dealing of many different commodities and different people in the street and being as discrete as possible. 

What about using other drugs such as Ecstasy and LSD?….No.  Methamphetamine dependent people seek the drug and the high of Methamphetamine.  Hallucination effects of drugs like LSD are not sought.  They may be used to temporarily divert cravings but, unlike other drugs, a chronic Methamphetamine user is solely focused on the euphoria and high that only the drug Methamphetamine gives them.

[14]     Mr Brosnahan on behalf of the appellant was given leave to further question the witness: 

Someone doesn’t become a chronic Methamphetamine user overnight does he?…. May I speak in general terms: no, but this drug is by nature far more addictive than heroin and there are people who unfortunately present with dependencies after one or two exposures, generally no though. 

A person fitting the description you outlined is a person at the end of the scale of addiction of Methamphetamine?…. That is correct. 

It is a process, addiction may come early or midway through the passage of use?…. I agree and that passage of use may be varied from user to user. 

Someone could be a very heavy user without fitting the description you have outlined?….Not for a long period of time and not with the drug Methamphetamine, I have not seen that with Methamphetamine. 

You have not seen a heavy user who is a chronic addict?…. I’ve seen heavy users on the pathway to chronic addiction, if heavy use is a point at a time they are not far away from it.  

The important thing is it can be a staged process?…. I accept that.

[15]     The appellant gave evidence that he was addicted to methamphetamine and was a recreational user of the other drugs within his possession.

[16]     The jury retired on 29 April at 1.35 pm.  At 2.47 pm there was a question, which was unrelated to any issue in this appeal, which was answered a little later, with the jury retiring again just after 3 pm.  The jury had a meal break between 6 and 7.15 pm.  Shortly after 8 pm the jury indicated to the Judge that they could not agree on a verdict and she gave them the standard direction in such circumstances, requesting them to see whether they could reach a unanimous verdict.  It was later reported to the Judge at 9.15 pm that the jury was making progress and shortly after 11 pm that they were “very very close”.  At 11.28 pm the jury returned with guilty verdicts on all three counts. 

First ground of appeal: Need to adduce expert evidence

Submissions for the appellant

[17]     It is submitted for the appellant that there is nothing in the brief of evidence of Mr Le Comte to suggest that he would assert at trial that a chronic user of methamphetamine, such as the appellant claimed to be, would not use Ecstasy and LSD and that this assertion first appeared in re-examination.  It is submitted that it is understandable that no defence evidence was briefed in rebuttal of that evidence, which it is submitted was extremely damaging so far as the appellant was concerned.  That is so because the appellant gave evidence that he did use all three.

[18]     It is accepted for the appellant, as it must be, that Mr Le Comte did say in his evidence-in-chief that he had never known anyone to use LSD, methamphetamine and Ecstasy.  It is, however submitted that this was the first mention of this topic and that the evidence in re-examination placed a completely different emphasis on what had gone before. 

[19]     Mr Brosnahan submitted for the appellant that the further evidence sought to be adduced from Ms Eagle in particular, supported by that of Mr Chaloner, shed serious doubts upon the evidence of Mr Le Comte on what, it is submitted, was an important and perhaps critical point.  It is accepted that their evidence was technically available at the time but it is submitted that it can be treated as “fresh” as it was not known to be a live issue at the time, with the evidence only becoming available subsequent to trial.  It is submitted that if the evidence of Ms Eagle and Mr Chaloner had been available at trial it would have been a matter for a jury to determine whether Mr Le Comte’s understanding of the usage of LSD, methamphetamine and Ecstasy was correct or not. 

[20]     Because of the view we take of the appeal it is unnecessary to traverse the evidence of Ms Eagle and Mr Chaloner in any detail.  For present purposes we accept that it states that it is not uncommon for drug users to use the three drugs in question.  The evidence does not, however, directly address the view of Mr Le Comte expressed in re-examination and qualified in the course of the further questioning by Mr Brosnahan.

[21]     It is further submitted that this was in effect a single-issue trial where the jury was required to reach a decision only on the one issue of supply and the fact that deliberations extended for such a long period shows how finely balanced the case was.  It is accordingly submitted that there is a real likelihood that there was a miscarriage of justice arising out of the inability of the defence in the circumstances to brief and call the evidence that is now available to combat Mr Le Comte’s evidence that he had never known a chronic methamphetamine user to use the three drugs involved. 

Submissions for the respondent

[22]     In response to these submissions it is submitted for the respondent that the answer by Mr Le Comte in re-examination has to be seen in the context of his evidence as a whole and that it did not introduce a different twist from what had gone before.  He had earlier acknowledged that he didn’t know many regular Ecstasy users who smoked methamphetamine.  He had accepted that it was possible for a user to be a user of both methamphetamine and Ecstasy, but expressed the opinion that it was not general.  However, it is submitted for the Crown that this arose directly out of his brief of evidence where he had expressed the opinion in the passage already cited above that the variety of drugs was not consistent with personal use and accepted drug use patterns.  The appellant was thus aware from the time of the brief that the Detective would be giving evidence of that nature and his reasons for those opinions would be enlarged at trial. 

[23]     In any event it was submitted for the respondent that the challenged re-examination answers do not have the significance attributed to them by the appellant.  The evidence of Mr Le Comte addressed the amount of each drug in turn.  There was the significance of there being different types of particular drugs and the significance to be attributed to the fact that someone had all three at the same time in the particular quantities.  The patterns of drug taking were but one limited aspect of the trial.  It is submitted it is important not to take a single answer out of the whole trial context.  Earlier the Detective had accepted that his evidence was of general patterns and that there were exceptions to those patterns.  At all times his evidence had been qualified and was not expressed dogmatically.  It is submitted that the appellant has not established that the re-examination evidence now relied upon for the appellant played any significant role in the case as a whole.  There is no suggestion in the appeal that the re-examination answer was highlighted in the closing address for the Crown or the summing up.  It is accordingly submitted that there is no objective basis upon which the Court can reach any conclusion that the answer in re-examination has led to any possible miscarriage of justice.  The topic was plainly in issue from the time of the brief and traversed in examination-in-chief and in cross-examination.  No objection was taken to any of the evidence.  The whole tenor of the evidence suggested that the proposition advanced was not an absolute. It is submitted that no miscarriage of justice could possibly arise.

[24]     It is further submitted for the respondent that in any event the Court should not give the further evidence credence.  It is submitted that what Mr Le Comte was saying was that the combination of the three drugs was unusual for personal use and, in particular, it was very unlikely, but not impossible, to use both methamphetamine and Ecstasy.  He said he did not know many users who did so.  The rarity he explained, as being related primarily to what he saw as the overwhelming influence of methamphetamine when one was a chronic user.  The re-examination comment related solely to a chronic user.

[25]     In that context, the only issue is whether the re-examination was unexpected and wrong.  Ms Eagle, it is said, does not comment on the reasoning of Mr Le Comte but merely expresses the opinion that she is aware of many drug users who are involved in using the range of drugs namely Ecstasy, LSD and pure methamphetamine together.  She says that they are known as “poly addicted”.  It is submitted for the respondent that this is not the issue that is before the Court. 

[26]     It is further submitted for the respondent that the evidence of Mr Chaloner is inadmissible and irrelevant.  It is submitted that it is inadmissible hearsay, relying on post-trial enquiries, and has not addressed the issue raised on this appeal. 

Discussion

[27]     We have necessarily read and considered the evidence sought to be adduced from Ms Eagles and Mr Chaloner.  In our view it is irrelevant to the primary issue before us.  It is simpler to permit it to be adduced notwithstanding that it does not comply strictly with the principles applicable to the introduction of new evidence on an appeal.

[28]     We have no doubt that there is no substance in the first point of appeal.  It involves the taking out of context of one short passage of the evidence and promoting it to the decisive evidence.  When there is nothing before us to show it received any particular emphasis in the closing addresses or the summing-up, that is plainly wrong.  The brief of evidence of Mr Le Comte briefly enumerated the reasons as to why he believed the appellant held the drugs he did for supply and not for personal use.  Whether a user would use the drugs held in association was not clearly expressed.  It was, however, traversed in evidence-in-chief without objection and cross-examined upon effectively.  The contested answers in re-examination arose out of what had gone before.  All of the evidence allowed for exceptions.  It spoke of the witness’s experience.  It was opinion evidence.  It was for the jury to evaluate it.  There was much else upon which the jury could well have relied in reaching the verdicts they did.  The Crown case was a strong one and did not depend on the evidence now attacked.  There is nothing in the evidence now adduced for the appellant that directly takes issue with the evidence now attacked.

[29]     This is yet another case where a convicted person seeks to fasten on to an explanation for conviction and to then attack the basis for the explanation chosen.  Here there was ample evidence to support the verdicts, regardless of the challenged answers in re-examination.  If that challenged answer had been the fulcrum of the Crown case and if there was well founded evidence negating it the position might be different.  However, neither of those essential pre-requisites to a possible challenge to the jury’s verdicts arises.  There is nothing therefore in the primary point of appeal.

Second Ground of Appeal: Length of Jury Retirement

Submissions for the appellant

[30]     It is submitted that a retirement of approximately ten hours, including one and a quarter hours for a meal break, is a very long one, considering the single-issue for determination as to whether or not the Crown had established that the appellant had the drugs for supply or whether it was possible they were for personal use.  It is submitted that it is dangerous to rely upon verdicts reached some three hours after the direction given to the jury when they are unable to agree and it is indicative of undue pressure being applied to those jurors who sought an acquittal when the hour was late.  It is submitted that there had been no indication to the jury that they could be sent to a hotel until morning to resume fresh if they wished.  It is said that the fact that at 9.15 pm the jury indicated they were making progress indicates that the progress must have been very slow as it took a further two and a quarter hours for unanimity.  It is submitted that the length of the jury retirement, combined with the circumstances of it, makes the verdict unsafe and that there is a possible miscarriage of justice.

[31]     It is acknowledged, however, that the point is primarily supportive of the first ground of appeal.  It underlines the difficulty the jury had to reach its verdicts and thus the material attacked in the first point of appeal might have made a difference to the jury.

Submissions for the respondent

[32]     The respondent accepts that the jury undoubtedly took quite a long period for deliberation having regard to the nature of the issue, but submits that this does not in itself provide any basis on which to set aside the verdict.  It is submitted there is simply no basis upon which one can talk of undue pressure as alleged for the appellant.  Progress was indicated by the jury subsequent to the direction following the indication they could not agree and eventually verdicts were reached.

Discussion

[33]     We accept that the primary issue was undoubtedly whether or not the jury accepted the evidence of Mr Le Comte or that of the appellant, or regarded the appellant’s evidence as raising doubt as to that of Mr Le Comte.  However, the jury also had to deal with each of the three counts in the indictment separately.  It was entirely possible, given the defence, that the jury might have acquitted the appellant in respect of the methamphetamine count but not in respect of the other counts.  It is a little simplistic to say in the context of a three-count indictment that it was a single-issue trial. 

[34]     There is nothing before the Court to indicate that the jury was under any pressure whatever.  Everything suggests the contrary.  The jury had afternoon tea and a meal in the ordinary way.  The indication that they could not agree came approximately an hour after the meal break.  After the Judge’s direction following that, the jury reached their three verdicts in approximately three hours.  The hour was reasonably late but not exceptionally so, particularly when the jury were reporting regularly that they were making progress.  There is no substance in this point of appeal.

Decision

[35]     The application to adduce further evidence is allowed.  The appeal against the convictions is dismissed

Solicitors:
Reeves Middleton Young, New Plymouth for Appellant1
Crown Law Office, Wellington