Law v Wilson HC Auckland A110/01 & A113/01

[2001] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY A110/01 & A113/01

IN THE MATTER of a general appeal pursuant to s 115 of the Summary Proceedings Act 1957

AND

IN THE MATTER of prosecutions under s 80(1)(b) of the Building Act 1991

BETWEEN AIK GUAN LAW and KIM LAN LAI
Appellants

AND DENIS GEORGE WILLIAM WILSON
Respondent

Counsel: J MacRae / J Hassall for appellants
M E Casey / J R Watson for respondent

Hearing: 16 October 2001

Date: 13 December 2001

RESERVED JUDGMENT OF GLAZEBROOK J

Solicitors:
Phillips Fox (J MacRae), DX CP24027, Auckland
KPMG Legal (M Casey) DX CP22001, Auckland

Introduction
[1] The appellants, Aik Guan Law and Kim Lan Lai, were prosecuted under s 80(1)(b) of the Building Act 1991 for permitting a building to be used by their tenants (a couple with four children) as a dwelling house when the building was not safe or sanitary for that purpose. They were found guilty on 25 May 2001 and on 31 May 2001 were each fined a total of $20,250, being a lump sum fine of $12,500 plus a fine of $5 per day for the 1550 days of the tenancy.

[2] The case attracted a lot of publicity, both in the print media and on television. This was, no doubt, because of the size of the fines, the degree of culpability found by the Judge and the concern (expressed by the Judge and the Waitakere City Council) about families with small children being forced by financial circumstances to live in a building which the Judge described as being in a shocking state of repair.

[3] The appellants have appealed against both conviction and sentence. As a preliminary matter they have applied for leave to adduce further evidence on appeal. The main evidence they seek to adduce is evidence that they say provides an alternative explanation for the dampness in the building - evidence they submit shows that the tenants were undertaking hydroponic marijuana cultivation in the fourth bedroom and expert evidence as to the effects such cultivation would have had on the building. They also seek to adduce further evidence on a number of secondary matters, including evidence of a pest expert who examined the premises and evidence which can be seen as going to the character of the tenants.

[4] The question is whether this evidence should be admitted. The parties are agreed on the tests to be applied. Under s 119(3) of the Summary Proceedings Act 1957 the evidence must not have been reasonably available at trial. In addition, caselaw has established that the evidence must be relevant, capable of belief and must be such that it might have affected the outcome of the trial. The overriding test, however, is whether the admission of the evidence is in the interests of justice. The discretion to admit further evidence is to be exercised sparingly.

Evidence sought to be adduced

[5] The appellants’ proposed new evidence is as follows:

[a] evidence of possible hydroponic cannabis cultivation in the fourth bedroom (proposed evidence of Darryl James Brazier);

[b] evidence of the effect such cultivation would have had on the condition of the property, in particular the dampness in the fourth bedroom but also throughout the dwelling (proposed evidence of David John Templeman and Michael Adair Nichols);

[c] evidence from a former tenant of the front house on the property as to the tidy state of the rear building at the beginning of the tenancy of Mr Murphy and Ms Te Whata and its deterioration over the period of their tenancy (proposed evidence of Marion G E Lubke);

[d] evidence from a former landlord of Mr Murphy as to the problems with Mr Murphy as a tenant and in particular damage done to the tenanted property (proposed evidence of Elias Drakakis);

[e] evidence from a pest control expert as to the lack of of pest infestation in the property (proposed evidence of Mark Steven Cross);

[f] evidence as to the convictions of the tenants, Mr Murphy and Ms Te Whata, including recent convictions relating to the cultivation of cannabis entered after the conviction and sentence in the present case;

[g] a letter from the Auckland District Law Society on the legal experience of the former counsel for the appellants, Mr Yeh, and evidence from Mr Law as to his failure to give proper advice.

Was the evidence available at trial?

[6] The first question to be answered is whether the evidence was reasonably available at trial. For the evidence relating to cannabis cultivation, the appellants’ position is that they had no idea about the possible cannabis cultivation until there was an inspection of the property by a pest expert at the request of the makers of a 20/20 documentary. According to the affidavit of Say Chan Law sworn on 25 September 2001, Mr Cross, the pest control expert, found a marijuana leaf at the property and told the appellants that there were other indications suggesting marijuana cultivation. The appellants then called in an expert on illicit drugs, Detective Sergeant Brazier, to examine the property. His proposed evidence would cover his findings that there are signs in the fourth bedroom that are consistent with a cannabis growing operation being in place in the room at some stage.

[7] It is submitted on behalf of the appellants that this evidence could not reasonably have been available at trial as the appellants had no experience in this area. The Council questions why, if regular visits were made to the property by the appellants and their son during the tenancy, the alleged marijuana cultivation operation was not observed. It further submits that the evidence was available at trial as all of the signs now said to point to cannabis cultivation were there to be observed before the hearing. Indeed they point to the evidence at trial of the appellants’ expert, Mr Bergeson, in response to supplementary questions about the fourth bedroom:

“There was some purposely cut holes in the wall which indicated to me that something sinister had been going on inside that building.” (Notes of Evidence p 85)

[8] We do not of course know what Mr Bergeson was referring to in his evidence. If he was referring to marijuana cultivation that information does not appear to have been passed on before the trial to the appellants or to the appellants’ counsel, Mr Yeh. Unfortunately Mr Yeh is now deceased. His file is available to the appellants but is, I understand, relatively sparse. If the information was passed on to Mr Yeh but not followed through then this may provide support for the appellants’ contention as to incompetence. It appears that the Council inspectors, although experienced in building inspections, did not note any signs of marijuana cultivation. Of course this may be because there was no such cultivation. A decision on these matters, however, cannot be taken at this stage before hearing fully from the proposed witnesses.

[9] Taking all these matters into account I accept that the evidence sought to be led from Detective Sergeant Brazier was not reasonably available at trial. It would not be expected that people without experience of marijuana cultivation would be alert to signs of such cultivation. Indeed one might doubt if even experienced building inspectors would as a general rule have the knowledge which would enable them to pick up signs of cultivation.

[10] This finding also applies to the proposed evidence of Mr Templeman and Dr Nichols. There are parts of the proposed brief of Mr Templeman that can be seen as covering matters that were covered by the appellants’ expert at trial. The Council submits that the appellants had every opportunity of calling evidence at trial from Mr Templeman. The Council says that this is the fourth counsel and the fourth building inspector that the appellants have had and one can thus assume that the decisions as to the counsel and expert at trial were taken carefully. The Council submits that the appellants should not be able to revisit the trial evidence as to the state of the building. I note first that the appellants have expressed some concern with the quality of that expert which is related to the quality of the legal advice given by Mr Yeh. This is not the time to be assessing whether such allegations are made out. That must await the hearing of the appeal, but Mr Yeh mistaking the relevant standard of proof may provide some fuel for the appellants’ contentions. It seems to me, also, that Mr Templeman’s more general comments relate quite closely to the allegations of hydroponic cultivation and it is difficult to split this brief. Therefore I would hold that the brief as a whole meets this part of the test.

[11] In respect of the evidence of the former tenant, this also arose out of the 20/20 programme as she contacted them after seeing that programme. They had had no contact with her and no knowledge of her whereabouts since she had left the front premises. I do not consider that the appellants should have made enquiries before trial in relation to former tenants. It would have been reasonable for them to consider it unlikely the tenants would be easily found or unlikely they had relevant information. The former landlord also contacted them after that programme. In the circumstances I accept that this evidence was not reasonably available at trial.

[12] In terms of the evidence of Mr Cross I note that the question of pest infestation was not originally part of the Council’s case. It first arose in Mr Murphy’s brief received only six days before the trial. While there may have been time for the appellants to instruct a pest control officer the time was tight. They were not to know that it would assume importance, as to an extent it appears to have done, in the Judge’s decision. Again, in the circumstances, I hold this part of the test met.

[13] In terms of the convictions in respect of cannabis, these were only entered recently and the criminal record was only sought when the appellants learnt of the possible cannabis operation in the building. For these reasons I accept the evidence of cannabis convictions was not reasonably available at trial.

[14] In terms of the evidence of other convictions, Mr Murphy’s record could have been sought by the appellants when they knew Mr Murphy was being called (although time would have been tight as the brief was received only six days before trial). The same applies in respect of Ms Te Whata. On the other hand, in an ordinary criminal prosecution, evidence of convictions of prosecution witnesses would be among the information disclosed to the defence. In the circumstances I would accept that this part of the test was met for this evidence.

[15] Obviously evidence relating to the incompetence of counsel was not addressed at trial as the issue only ever arises afterwards. Any evidence related to this therefore is, by its very nature, not available at trial, not being relevant at that stage.

[16] In respect of all of the evidence therefore I hold that the test of not being available at trial is met.

Is the evidence relevant?

[17] The next question is whether the evidence sought to be adduced is relevant. The evidence as to possible cannabis cultivation (as set out in para 5(a) and (b) above) must be relevant both as to conviction and penalty. Another possible cause of the dampness in the building has been raised. The same applies for the evidence of Mr Cross, the pest control expert, para 5(e) given that pest infestation was specifically mentioned by the Judge.

[18] The proposed evidence set out in para 5(c), (d) and (f) above can be seen as evidence going largely (although not entirely) to the character of Mr Murphy and Ms Te Whata. The evidence of cannabis convictions could also, however, be seen as relevant to the question of whether there was marijuana cultivation in the building and the evidence as to the state of the house at the beginning of the tenancy could be seen as directly relevant to the question of whether the building was insanitary for use by tenants, at least at that time.

[19] In terms of evidence of character, the convictions could have been put to Mr Murphy and proved if he denied them. While some of the convictions are relatively old, this would affect weight rather than admissibility, especially as some involved dishonesty offences and convictions for these offences can be seen as being relevant to credibility. The same goes to a lesser degree for the character evidence of Mr Drakakis and Ms Lubke, although arguably this evidence could be seen as collateral only (especially that of Mr Drakakis relating as it does to another property entirely). In this case, however, given that the trial judge preferred the evidence of Mr Murphy on a number of points and clearly regarded him and his family as innocent victims, I would not disallow the proposed evidence on the ground it is irrelevant.

[20] It is, however, difficult to see how character evidence will be dealt with on appeal. The District Court Judge came to a strong view on relative credibility. He may have come to the same view even if he had heard the evidence as to character sought to be adduced. The Judge hearing the appeal will not be able to resolve this question to the extent it may be important (except perhaps if Mr Murphy and Ms Te Whata are heard at appeal). The evidence therefore may be of marginal significance at appeal. Nevertheless this is not in itself a reason for it not to be admitted as there is always the possibility of a retrial being ordered.

[21] In relation to the evidence set out in para 5(g), one of the grounds for appeal is the inadequacy of counsel. Mr Yeh is unfortunately deceased although the appellants do have his file. This means that any evidence relating to Mr Yeh’s ability must be relevant. I do note, however, that inexperience does not equate to incompetence in and of itself so the relevance of the evidence sought to be led may be marginal. Again, however, this does not mean it should not be admitted.

Is the evidence capable of belief

[22] There is nothing to suggest that the evidence sought to be led is inherently unreliable. It may of course be that, after a full hearing including cross-examination, the evidence is not accepted. At this stage, however, there is nothing to suggest that the evidence is not capable of being believed.

Might the evidence have had an effect on outcome of trial?

[23] The evidence of alleged marijuana cultivation may provide another explanation for the state of the building. The Council argues that nevertheless there was ample evidence that the physical defects in the building led to it being insanitary, whether or not the dampness and mould in the building could be traced at least partly to another cause. It may be that it is ultimately found to be correct in its contention. Without hearing the full argument on appeal it would be inappropriate to come to a conclusion on this.

[24] Even if the Council is ultimately successful, however, the evidence, might have had an effect on penalty. The judge imposed a particularly severe penalty, based on the view he had formed of the state of the building and in particular the dampness and mould. The evidence of the pest control expert must also be seen in the same light. Although by itself it would not have affected the outcome of the trial on liability, taken with all the other evidence, it may have had an effect. It may also have affected penalty, in conjunction with the other evidence. I have already commented on the character evidence. It may have affected the Judge’s view as to relative credibility and this may have had an effect both on conviction and sentence.

Where do the interests of justice lie?

[25] The judge at first instance made some very strong comments both in his substantive judgment and in his sentencing notes about the conduct of the appellants. It seems to me in the interests of justice that the appellants have the chance on appeal to put what may be a different complexion on the case on the basis of the new material that has arisen. This is particularly so because the case attracted so much media publicity.

Conclusion

[26] The application to adduce further evidence is granted. For the avoidance of doubt this is merely the granting of an application to adduce further evidence. Whether this further evidence is accepted or, even if it is accepted, the effect this will have must wait until the hearing of the substantive appeal.

[27] Leave is given to the respondent to apply to file evidence in response to the appellants’ new evidence. Draft briefs of any proposed evidence should be provided with any such application.

[28] A directions conference should be set down as soon as possible to deal with any remaining matters and to set the appeal down for hearing.