Hutton v The King
[2024] NZHC 1146
•9 May 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-463-36
[2024] NZHC 1146
BETWEEN MICHAEL HUTTON
Appellant
AND
THE KING
Respondent
Hearing: 9 May 2024
(Heard at Tauranga)
Appearances:
M R Douglas for appellant H J Speight for Crown
Date of judgment:
9 May 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 9 May 2024 at 3.00pm.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
W T Nabney, Barrister, Tauranga Pollett Legal, Tauranga
HUTTON v R [2024] NZHC 1146 [9 May 2024]
[1] Michael Hutton appeals the 18 July 2023 decision of Judge I D R Cameron in the District Court at Tauranga,1 finding him guilty of manufacturing a controlled drug,2 being methamphetamine.3
Background
[2] On 15 February 2021, police found a quantity of methamphetamine at an address in the Bay of Plenty’s Te Puna. Two men since have pleaded guilty to manufacturing methamphetamine at the address between 23 and 25 October 2020. Police investigations engaged Mr Hutton, who was placed at the address during that time by cellphone polling records.
[3] Divergently from his statement to police he was in Whanganui at the time, at trial, Mr Hutton admitted he also was present at the address for periods during that time. He gave evidence he attended at the address’ detached shed overnight on 23–24 October 2020 to repair and restore one of the two men’s damaged Harley Davidson motorcycle. That man occasionally would bring him methamphetamine to consume while he worked, and the following morning showed him methamphetamine being manufactured in a laundry at the address’ house.
[4] After briefly leaving the property to go home and to pick up parts for the repair work, Mr Hutton’s evidence was he returned to the address to continue working on the motorcycle until late on 25 October 2020. He then relocated the motorcycle to the man’s house in Pyes Pa, the man following in his own car (not being able to relocate the motorcycle himself, due injuries sustained in a crash leading to need for the motorcycle’s repair). Mr Hutton explained the divergence between his explanations as his being concerned not to become caught up in the two men’s offending.
Judgment on appeal
[5] Judge Cameron ‘considerably doubted’ Mr Hutton’s version of events as being inconsistent with honesty.4 Rather, contemporaneous text messages between
1 R v Hutton [2023] NZDC 10726.
2 Misuse of Drugs Act 1975, s 6(1)(b) and (2). Maximum penalty life imprisonment.
3 Section 2(1), definition of “controlled drug”; sch 1.
4 R v Hutton, above n 1, at [10(a)].
Mr Hutton and his partner — for example, in particular,5 at 6.40 pm on 23 October 2020 when he messaged his partner “it get boring waitn [sic] for it so while we. waitn gna do his bike in between” — were more consistent with Mr Hutton’s involvement with the methamphetamine manufacture, an involvement reinforced by his close association with the man,6 who supplied methamphetamine for his and his partner’s own heavy methamphetamine use,7 and their need of money to fund their habits and pay rent.8 On the basis of the text messages, “[v]iewed as a whole” in context,9 the Judge found Mr Hutton intentionally assisted in manufacturing methamphetamine at the address between the dates of 23 and 25 October 2020.10
[6] For Mr Hutton, Michael Douglas argues there was insufficient evidence on the Crown case to prove Mr Hutton engaged in manufacture of methamphetamine with the two men. He says the Judge failed to explain “why [he] considered that [Mr Hutton] must have been involved in the manufacture of methamphetamine”, particularly given there was “no evidence of what role if any [Mr Hutton] played in such manufacturing”. He also submits the Judge placed undue weight on Mr Hutton’s admitted untruthfulness, without having regard for the cautions set out at s 124 of the Evidence Act 2006.
Approach on appeal
[7] Appeals against conviction are determined by way of rehearing.11 As against a decision reached on a judge-alone trial, I must allow the appeal only if satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of
5 At [15]. Also, at [10(c)]: other text messages established the man invited Mr Hutton to go to his house; Mr Hutton advised his partner he would be gone for the night of 23 October 2020 and the following day; the man asked Mr Hutton to ride the man’s motorcycle to the address to work on “in between”; his partner messaged “just be careful”; Mr Hutton messaged his partner the man did not like Mr Hutton receiving phone calls while working; and the partner messaged Hr Hutton she was scared for him and “I don’t want u taken away from me”, to which Mr Hutton responded he understood but he was “only doing it to try to get us ahead”:
6 At [14].
7 At [13].
8 At [13].
9 At [15].
10 At [17].
11 See Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32], where the Court noted that the principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 apply.
justice has occurred, or a miscarriage of justice has occurred for any reason.12 As to that assessment, the Judge’s reasons are to:13
… show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached.
[8] By “miscarriage of justice” is meant something has gone wrong at trial, either to create a real risk the outcome of trial was affected or to result in the trial itself being unfair or a nullity.14 The magnitude of the former error is to be of “sufficient seriousness to warrant the verdict being set aside without further inquiry”.15 In Walker v R, the Court of Appeal explained of s 232(4)’s definition of “miscarriage of justice”:16
A miscarriage in the former of those senses was held under the law as it previously was to involve two issues, and that continues to be so:
First, something must have gone wrong with the trial or in some other relevant way. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.
A miscarriage in the second sense, one which has “resulted in an unfair trial”, must be set against s 25(a) of the New Zealand Bill of Rights Act 1990, which confers an absolute right to “a fair and public hearing by an independent and impartial court”.
Discussion
[9] For Mr Hutton to be found guilty of manufacturing a controlled drug, as was the charge against him, the Judge needed to be sure:
(a)a drug was created;
12 Criminal Procedure Act 2011, s 232(2).
13 Sena v Police, above n 11, at [36].
14 Criminal Procedure Act, s 232(4).
15 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [41], adopted by the Supreme Court in Haunui v R
[2020] NZSC 153, [2021] 1 NZLR 189 at [50].
16 Walker v R [2016] NZCA 152 at [15]–[16], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] as to a miscarriage of justice for the purposes of s 385(1)(c) of the Crimes Act 1961; Wiley v R, above n 15, at [27]; and Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [65]. Similarly, Do v R [2024] NZCA 97 at [18] and Sachu v R [2023] NZCA 610 at [28], both also citing R v Sungsuwan, above, at [110].
(b)the drug was a controlled drug;
(c)Mr Hutton was involved with and/or assisted in the process of making the drug;
(d)he intended that a drug be created; and
(e)he knew or was reckless as to whether the drug as a controlled drug.
[10] That methamphetamine, being a controlled drug, was created does not appear to have been in issue before the Judge. Rather the contest at trial was if, and on appeal is if the Judge erred in his assessment, Mr Hutton knowingly was so involved in its creation.17 That is the usual focus of such prosecutions.18 His actual knowledge methamphetamine was being created, having been shown its ‘cook’ in the laundry,19 met the mens rea requirement.20 Given he was charged jointly with the other men, the Judge needed to be sure Mr Hutton provided active assistance.21 Only that element remained for the Judge to be satisfied beyond reasonable doubt.
[11] The Judge rejected Mr Hutton’s evidence he was at the address only to fix the man’s motorcycle. Before placing any weight on evidence of a defendant’s lie, s 124(4) of the Evidence Act requires a Judge trying a criminal proceeding without a jury to “have regard” to the following:22
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
While the ‘have regard’ expression is clumsy, the point is judges, as finders of fact, must be satisfied the defendant lied, comprehend people lie for various reasons and “not necessarily conclude” the lie means the defendant is guilty. It essentially is
17 R v Rua [2008] NZCA 38 at [12].
18 At [18].
19 See [3] above.
20 Kupec v R [2018] NZCA 377 at [20], applying Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [73].
21 Marlow v R [2015] NZCA 546 at [12].
22 Evidence Act 2006, s 124(3)(a)–(c).
a reminder, if one was required,23 of what judges familiarly tell juries if lies are in issue, to assess “what significance to attach to the fact of a lie”.24
[12] The evidence of Mr Hutton’s involvement wholly was circumstantial. Thus the Judge needed to be sure:25
[The] only inference open in the circumstances was one which allowed no reasonable doubt and that it was not sufficient that the evidence should merely show a strong probability of guilt.
As I have outlined at [5] above, that was the inference drawn by the Judge from the text messages in context. In coming to that conclusion, the Judge found Mr Hutton’s “explanation surrounding the text messaging were, on the whole, entirely unconvincing”,26 and his “explanations as to the meaning of the text messaging totally unconvincing”.27 The Judge “reject[ed] his evidence that he was only fixing a motorbike and not assisting with the manufacture of methamphetamine”.28 Those are credibility findings.29
[13] If also untruths, then it was open to the Judge to treat the fact of Mr Hutton’s lies as an additional item of circumstantial evidence for use in reasoning his innocence or guilt.30 But, as I have outlined at [5] above, “[t]urning to the prosecution case”,31 the Judge found:32
[T]he text messaging, against the background I have described, establishes that the defendant was indeed assisting [the man] to manufacture methamphetamine between the dates of 23 and 25 October 2020.
That “background” was:
(a)Mr Hutton and his partner “were heavy methamphetamine users and in need of money to fund their habit and pay their rent”;33
23 Christian v R [2007] 2 AC 400 at [28].
24 R v O’Connor [2013] NZHC 1869 at [29].
25 R v Maxwell (1983) 3 CRNZ 644 (CA) at 647, citing R v Horry [1952] NZLR 111 (CA) at 122.
26 R v Hutton, above n 1, at [11].
27 At [12].
28 At [12].
29 See Hough v Police [2015] NZHC 2691 at [29].
30 McLaughlin v R [2015] NZCA 339 at [43], citing R v Mann [2010] NZCA 68 at [35] and R v Dewar [2008] NZCA 344 at [17].
31 R v Hutton, above n 1, at [13].
32 At [15].
33 At [13].
(b)the man “supplied them with methamphetamine”;34
(c)Mr Hutton “had a close relationship with [the man], including spending considerable time with him fixing cars and motorbikes”;35 and
(d)Mr Hutton had “both a personal and financial motive … to assist [the man] in the manufacturing of methamphetamine process”.36
[14]The crucial text message replicated at [5] above:37
… clearly is a reference to carrying out some activity with an intention of fixing the motorcycle “in between” that other activity. The evidence points to that other activity being the manufacture of methamphetamine.
Despite rejecting Mr Hutton’s exculpatory evidence, the Judge gave no significance to it. He was not required to do so.38 Doubtless, the Judge could also have considered if there was innocent explanation of the ‘other activity’, such as Mr Hutton sought to afford in explaining the other activity was “waiting for paint to dry on the motorcycle before other coats could be applied”,39 which might then have engaged s 124(4). But that is not what the Judge did. Section 124(4) has no application.40
[15] The Judge’s reasons “reflect [his] assessment of the evidence and why that assessment resulted in a conviction”.41 His explanation replicated at [14] above explains why he was sure Mr Hutton was involved in the methamphetamine manufacture. Mr Hutton’s text message was to be construed as referring to some other activity in which he was engaged beside fixing the motorcycle, and the evidence was the other activity was the manufacture of methamphetamine. Mr Hutton’s contribution to that actus reus in “carrying out” the activity established him a principal offender.42 The Judge was not required to be any more specific as to Mr Hutton’s involvement.43
34 At [13].
35 At [14].
36 At [14].
37 At [15].
38 R v Guo [2009] NZCA 612 at [68].
39 R v Hutton, above n 1, at [10(c)].
40 See Gorrie v R [2020] NZHC 1609 at [51]–[54].
41 Sena v Police, above n 11, at [36].
42 Ngamu v R [2010] NZCA 256, [2010] 3 NZLR 547 at [16].
43 Marlow v Police, above n 21, at [12].
[16] The implication is the Judge had no reasonable doubt that was the only inference available from the evidence. It was an inference appropriately drawn from proven facts of the text messages in context.44 Necessarily that means, as the Judge said, he rejected Mr Hutton’s alternative. The Judge was not wrong to do so. In the factual contest, he needed to make a choice and did so on “a rational and considered basis”.45 The alternative proffered by Mr Hutton lacked credibility.
[17] I come to no different view on the evidence. The Judge did not err. I see nothing otherwise having gone wrong at trial. There is no miscarriage of justice.
Result
[18]The appeal is dismissed.
—Jagose J
44 Roulston v R [2020] NZCA 255 at [21].
45 Sena v Police, above n 11, at [36].
0
16
0