Lichtwark v The Queen
[2014] NZCA 112
•1 April 2014 at 2:30pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA663/2013 [2014] NZCA 112 |
| BETWEEN | DARYL MICHAEL LICHTWARK |
| AND | THE QUEEN |
| Hearing: | 6 March 2014 |
Court: | Randerson, Venning and Cooper JJ |
Counsel: | E J Forster for Appellant |
Judgment: | 1 April 2014 at 2:30pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
Introduction
The appellant, Daryl Lichtwark, appeals against his conviction after trial by jury on charges laid under the Misuse of Drugs Act 1975 that he possessed precursor substances[1] and equipment intending that they be used in the manufacture of methamphetamine. The defence run at the trial was that the items allegedly possessed by the appellant in fact belonged to and were being used by others.
[1]Hydrochloric acid and sulphuric acid.
Two grounds of appeal are advanced. The first (the hair sample issue) is that the trial judge, Judge Ruth, wrongly excluded evidence that the defence was intending to call dealing with traces of methamphetamine found in the hair of a child E, who was living at the address where the offending was alleged to have taken place.[2] The appellant sought to adduce the evidence to establish that the contamination occurred at a time prior to when he commenced living at the address.
[2]R v Lichtwark DC Hamilton CRI-2011-019-9361, 13 June 2013 [Ruling 2].
The second issue raised is trial counsel error by defence counsel, Mr Hesketh. It is said that Mr Hesketh’s cross-examination of key Crown witnesses was inadequate and that he consequently failed to ensure that the appellant’s defence was properly put. In particular, it is alleged that Mr Hesketh, failed:
(a)to put adequately to two witnesses called by the Crown that they were motivated by malice and had colluded to give false evidence that the relevant items were in the possession of the appellant;
(b)to explore with one of the witnesses that she had conspired to frame the appellant; and
(c)to pursue an issue about the rate of growth of E’s hair.
For the purposes of responding to the issues alleged as counsel error, Mr Hesketh swore an affidavit and was cross-examined at the hearing of the appeal. As a consequence of that cross-examination, Mr Forster responsibly abandoned some other allegations of counsel error.
Background
The appellant had been sentenced to home detention on 29 September 2011, and was serving that sentence at an address in Hamilton occupied by Mr Jared Mills. Mr Mills was in a relationship with Ms Renee Sharpe, whose daughter was in a relationship with the appellant. It appears that Mr Mills agreed to the appellant residing at the property because of these relationships. However, after about three weeks the appellant’s relationship with the daughter came to an end, and he began seeing someone else. This resulted in tensions between the appellant, Mr Mills and Ms Sharpe.
In November 2011, Mr Mills and Ms Sharpe left to stay at her house. On 5 December, they returned to discover what they claimed was an unusual smell emanating from the appellant’s bedroom, and corrosion stains on a stainless steel bench. There was an argument. After a further argument on 6 December, Mr Mills asked the appellant to leave.
After he left, Mr Mills and Ms Sharpe claimed they found various items that they thought were suspicious. Mr Mills referred to a coffee container with dark liquid in it, that they found on top of the fridge behind a microwave, and two Pyrex dishes that he said did not belong to Mr Mills or Ms Sharpe. Mr Mills decided to call his father who was employed by the police, and explain the position to him. Mr Mills senior then contacted a number of police officers.
The investigation that followed revealed the presence of precursor substances and equipment consistent with the manufacture of methamphetamine. Traces of methamphetamine were found in the kitchen and the appellant’s bedroom, but it was not clear whether methamphetamine had been manufactured: swabs taken from the kitchen and the bedroom could have been the result of either manufacture or smoking. Analysis of hair samples taken from E, who was Mr Mills’ young daughter (aged three and a half when the samples were taken) established that she had been exposed to methamphetamine.
The defence case was that Mr Mills and Ms Sharpe were responsible for the offending, not the appellant. This was pursued in cross-examination of Mr Mills and Ms Sharpe, and by the appellant when he gave evidence in his own defence. He denied possession of the precursor substances and equipment, and accused them of being bitter towards him.
The hair sample issue
As part of the defence strategy to shift responsibility to Mr Mills and Ms Sharpe, it was sought to establish that E’s hair had become contaminated with methamphetamine at a time before the appellant commenced residing at the address. To this end, Mr Hesketh briefed the evidence of Matthew Hosking, a forensic scientist with expertise in chemistry, employed by the Institute of Environmental Science and Research Ltd. Mr Hesketh was aware from police disclosure that Mr Hosking had analysed a sample of E’s hair, and had subsequently written a report dated 28 February 2012 in which he concluded E had been exposed to methamphetamine.
Mr Hesketh was also aware of a further report prepared by Mr Hosking dated 19 April 2012, following additional analysis that he carried out at the request of the police. One strand of hair 27 centimetres in length had been provided for analysis. This was cut into segments. In the 19 April report Mr Hosking noted that the initial hair analysis had been carried out on a segment comprising the six centimetres closest to the scalp. For the further analysis another six centimetre strand was cut from the remainder of the sample, measuring from the point closest to the scalp end. Mr Hosking confirmed the presence of methamphetamine in that strand also.
As a result of seeing these reports, and knowing that the police did not intend to call Mr Hosking, Mr Hesketh made contact with him and procured a draft brief of evidence to reflect their discussion. He intended to call this evidence at the trial. In the draft brief, and in written comments he sent to Mr Hesketh on the draft, Mr Hosking confirmed that his analyses, carried out on a total of 12 centimetres of E’s hair, meant that she had been exposed to methamphetamine over the period of time it had taken those 12 centimetres of hair to grow.
He noted that based on available data, adult hair grows at approximately one centimetre per month, but said that there is very limited information about the growth rates of children’s hair. While the growth rate of children’s hair is more variable than for adults, hair growth rate generally declines with age, although the decline is “not huge” and “very gradual”. He thought it likely that children’s hair would fall within the adult range of 0.9 to 1.4 centimetres per month, but because their hair grows more quickly, it was likely the hair growth of children would be at the higher end of that average range. He considered, “on the balance of probabilities” that the 12 centimetre growth of E’s hair would amount to a minimum of six months’ growth.
This evidence would have assisted the appellant’s defence because if accepted it would have demonstrated that E’s exposure to methamphetamine had occurred prior to the time when the appellant commenced living at the address.
Armed with Mr Hosking’s brief, Mr Hesketh put to Mr Mills in cross-examination that there would be evidence from a toxicologist who had analysed E’s hair that she had been exposed to methamphetamine for at least six months.
At that stage, the prosecutor sought to see the judge in the absence of the jury. A voir dire followed, in which Mr Hosking repeated the views contained in his reports and the brief he had prepared for the defence. He indicated however that 12 centimetres of growth could represent a range of time between three and a half and eight months.
In cross-examination Mr Hosking conceded that the only way to ascertain any person’s hair growth, whether adult or child, is by actual measurement. He said:
… the variance of estimations is huge or a lot larger than with children than it is with adults … .
He explained that what he was giving was a figure that was “likely or possible, the balance of probabilities”, and at no point had he actually said it was “an accurate amount”. At one stage there was the following exchange:
Q.So in terms of the figures that you’ve given around eight months or 3.5 months depending on which variables you use, those are simply to use a better word guesses that are being made based on adult data, you cannot be certain or give any degree of certainty in relation to children’s hair growth?
A.No and that’s why I explained to you before, the only way to get a really good idea of growth rate is to actually measure the growth of the individuals hair.
Mr Hosking also said that growth rate could vary with diet, gender, race and “a huge number of factors”.
In re-examination Mr Hosking said that the period of time over which the hair would have grown 12 centimetres was “open to interpretation”, and repeated that the only way to determine it would be by actual measurement of the hair growth. He added:
… in my opinion it’s highly likely to cover a period of two months based on the highest recorded adult growth rate I know of. So using that as a guide we’ve (sic) already explained that it will cover a period of a minimum of three and a half months.
At the conclusion of the evidence the Judge ruled Mr Hosking’s evidence inadmissible.[3] He considered that the evidence would not be substantially helpful in terms of s 25 of the Evidence Act 2006. He described the evidence as “of very low quality indeed”, and thought that at best it was “guesstimate material and could not be put to the jury on any other basis”.[4] He continued:[5]
It could not, for example, be suggested to the jury that there is a scientific basis for suggesting that there is any timeframe which could be put with any certainty at all. I bear in mind that the jury, of course, have to be sure of guilt and that only a reasonable doubt needs to be raised. But in regard to this evidence, I do not take the view that this would be substantially helpful and indeed is more likely to be confusing and leave the jury to make unjustified interpretations which is the very matter that Mr Hosking spoke against in the course of his evidence and properly so.
[3]Ruling 2, above n 2.
[4]At [12]–[13].
[5]At [13].
He concluded by saying that the evidence could not go beyond the simple proposition that E’s hair had been exposed to methamphetamine, probably in an environment where it was being used or smoked.
Submissions
Mr Forster relied on the fact that the appellant moved to the address after being sentenced to home detention.[6] Mr Mills denied being a user of methamphetamine, although under cross-examination he admitted that he had bought methamphetamine “a long time ago”. Ms Sharpe admitted to having tried methamphetamine but was vague as to when that might have been, effectively saying it was between five and ten years ago. Both denied having used it during the time that the appellant was staying at the address.
[6]Mr Forster submitted that his occupation commenced on 21 September 2011. However, it appears that the sentencing date was 29 September 2011. We will refer to that date as the date on which he commenced residing at the address, although the record does not specifically state that.
Mr Forster submitted, on the basis of Mr Hosking’s evidence, that it was more likely that E would have been exposed to methamphetamine prior to commencement of the appellant’s occupation. This of course fitted with the appellant’s case that it was Mr Mills and Ms Sharpe who were responsible for the offending. There was a statement of agreed fact, submitted under s 9 of the Evidence Act, that E had been exposed to methamphetamine. Mr Forster submitted that the Judge’s suggestion that Mr Hosking’s evidence was based on a “guess” was an over-statement, and Mr Hosking had merely qualified his opinion in accordance with his obligations as an expert witness. Accordingly, the effect of the Judge’s ruling was to deprive the defence of crucial evidence on which it was intending to rely.
Mr Downs submitted that the Judge’s decision was correct. He noted that in Mahomed v R this Court observed that s 25 of the Evidence Act “necessitates consideration of an amalgam of relevance, reliability and probative value”.[7] While the proposed evidence was relevant, it was unreliable. Further, the speculation inherent in the opinion expressed by Mr Hosking undermined its probative value. There was a danger that the jury would accept the evidence because it was given by an expert, notwithstanding its failings. For these reasons, the Judge was correct to exclude it.
Discussion
[7]Mahomed v R [2010] NZCA 419, [2011] 3 NZLR 145 at [35].
Section 25(1) of the Evidence Act provides:
25 Admissibility of expert opinion evidence
(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding .…
Apart from what was said in Mahomed v R, this Court has addressed the issue of substantial helpfulness in Platt v R where it was pointed out that the requirement that the evidence be substantially helpful creates a higher threshold than simple probativeness.[8]
[8]Platt v R [2010] NZCA 43 at [39].
The word “substantial” was discussed by Blanchard J in Vodafone New Zealand Ltd v Telecom New Zealand Ltd, where he referred to R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd in which Lord Mustill, emphasised the “protean nature” of the word “substantial”, ranging from “not trifling” to “nearly complete” and cautioned against trying to find a precise meaning for a word that is inherently imprecise.[9]
[9]R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 (HL) at 29, cited with approval in Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [54].
It is unnecessary to attempt that here. In accordance with Mahomed v R substantial helpfulness is to be assessed in terms of relevance, reliability and probative value.
As has been seen, the Judge referred to Mr Hosking’s estimate of the period over which E would have been exposed to methamphetamine as a “guesstimate”. We accept Mr Forster’s criticism that the evidence had a stronger basis than guesswork. We are also satisfied that the evidence was relevant. However, the reliability and probative value of the evidence were low having regard to its inherent uncertainties. Although Mr Hosking referred at one stage to the balance of probabilities, we do not consider he was using that term to convey the meaning it has in the law of evidence. Rather, he seems to have regarded it as connoting something that was either “likely” or “possible”. We consider that the evidence was so uncertain and attended by doubt that it was properly excluded under the substantial helpfulness test.
Consequently, this ground of appeal must fail.
Counsel error
Mr Forster advanced four different errors allegedly made by trial counsel. The first three were overlapping. It was submitted first that Mr Hesketh had not specifically put to Mr Mills and Ms Sharpe that they had colluded so as to frame the appellant.
Secondly, he said counsel had erred by not putting it to those witnesses that the reason they had colluded to frame the appellant was that they were motivated by malice or spite towards him.
Another aspect of the “framing” argument was advanced as the third error. It concerned a statement made by Ms Sharpe to the police that she thought the “stuff in the coffee jar was iodine or betadine”. Mr Forster noted that the appearance of the substance was that of a brown liquid, and given it was in a coffee jar submitted that only somebody with “esoteric information” could have made the assertion made by Ms Sharpe as to what it was. It was submitted that counsel should have questioned her first about the limitations of her opportunity to observe what was in the jar, and then put to her that only someone who knew what was in the jar could possibly have suggested that it was iodine or betadine. At that point, it could have been argued she had revealed herself as part of a conspiracy to frame the appellant.
As to the submission that defence counsel did not put “collusion” to Mr Mills and Ms Sharpe, while it might be correct that this word was not used in cross-examination, it was obvious from the tenor of the cross-examination that the defence case was that Mr Mills and Ms Sharpe were giving untruthful evidence for the purpose of falsely implicating the appellant.
Mr Hesketh put to Mr Mills that he was a user of methamphetamine, and that when the appellant moved in, Mr Mills asked him to assist in the manufacture of methamphetamine. Then, when the appellant declined to help, it was suggested that Mr Mills called his father because of the appellant’s knowledge of what Mr Mills himself had been doing. It was put to Mr Mills that he had lied about there being an odour on the premises, and that he had made that up so as to explain to his father why the hydrochloric and sulphuric acid were in the house. It was also put to him that he was lying when he alleged that the appellant had brought jugs and Pyrex dishes with him when he moved into the house. His credibility was also attacked by reference to his previous convictions.
As to Ms Sharpe, Mr Hesketh put it to her that she had been a party to the conversation between Mr Mills and the appellant in which the latter was asked to be involved in cooking methamphetamine, soon after he moved in. It was also put to her that she knew that the appellant was aware of her involvement with methamphetamine. It was established that she also knew that Mr Mills had rung his father and that it was expected he would be coming to the house.
In his closing address Mr Hesketh submitted that both Mr Mills and Ms Sharpe knew of the presence of the items found by the police because they belonged to them. He submitted that Ms Sharpe had “worked out pretty quickly” that the police might arrive with Mr Mills senior after the appellant had been told to leave the house and that “we’d better set this thing up”. Mr Hesketh suggested that was the motive.
The cross-examination and submissions made by Mr Hesketh were reflected in the Judge’s summing up where he contrasted aspects of the Crown and defence cases:[10]
The other thing they do that the Crown says is vitally important here is they contact Mr Mills’ father. Now, the Crown says to you, “Why on earth would they invite a member of the police, or a person at least connected with the police, into their home if they know they’ve got possession of this very incriminating material? “Why” says Ms Guthrie “would they not simply dispose of it? Throw it away, get rid of it somehow” Why on earth would you invite someone connected with the police in?” Mr Hesketh on the other hand says, well, what they, what Ms Sharpe who he says is the driving force in this couple, did was to realise that when her partner called his father to come and give some help, she realised that what sort of predicament they might be in and so, as a matter of collusion, she and Mr Mills decided upon this plan to put these items into Mr Lichtwark’s room to frame him, or put the blame on him, if you like.
[10]R v Lichtwark DC Hamilton, CRI-2011-019-9361, 17 June 2013 at [62].
Mr Forster pointed out that, later in the summing up, the Judge recorded that collusion had not been put to either Mr Mills or Ms Sharpe. The Judge said that while Mr Hesketh had put to them that they were both lying, that was not the same proposition as saying they got together to make up their lie. He invited the jury to be cautious about the proposition that they had colluded, on the basis that it had not been put to them.
However, we do not think it was significant that Mr Hesketh did not use the word “collusion” in his cross-examination of Mr Mills and Ms Sharpe. He put it to them both that they had lied, and that their motive for doing so was the need to have an explanation for the presence of the incriminating items that the police found in the house. This was done in the context that both had been present at the time of the argument when the appellant was asked to leave the house. Both had then removed items that had been in the kitchen and put them in the appellant’s bedroom.
We note observations made by the English Court of Appeal in Farooqi v R, in which the Court deprecated the making of comments or assertions in cross-examination:[11]
The place for comment or assertion, provided a proper foundation has been laid or fairly arises from the evidence, is during closing submissions to the jury.
[11]Farooqi v R [2013] EWCA Crim 1649, [2014] 1 Cr App R 8 at [113].
Here, we are satisfied that the factual foundation for the submission about collusion was adequately laid in cross-examination, entitling Mr Hesketh to make the closing submission that he did. The observations by the Judge about collusion not being put to the witnesses would have weakened the force of that submission but we are satisfied that if the jury accepted the defence case that Mr Mills and Ms Sharpe had given false evidence to shift the blame to the appellant, the fact that the witnesses would have colluded would have been self-evident to the jury.
In the circumstances we think it would have been obvious to the jury that both had acted in concert and we reject this ground of appeal.
We are also not persuaded that there is any merit in the second alleged error about malice and the third issue, about “framing”. As to malice, when cross-examined by Mr Forster, Mr Hesketh did not accept that it would have assisted the defence case if “malice” had been specifically put to the appellant. Indeed, he said that it would have been contrary to the defence case that Mr Mills had rung his father in panic, because he was confronted by the appellant. He observed:
A.…Mr Mills is by no means a tough sort of character. Mr Lichtwark can be intimidating I believe and this was properly put that because Mr Mills felt intimidated he rang his father. There’s a line in his evidence somewhere or might be Ms Sharpe’s evidence somewhere that Jack Mills can fix anything or can do anything and the call to the father resulted in … Mr Mills and Ms Sharpe realising afterwards that the father was on his way round, he may have smelt the chemicals so that’s why they took the action they took. It was more out of panic than out of malice, the moving of the chemicals and the items into Mr Lichtwark’s room.
Q.The two theories in terms of covering up the smell in their place and malice could have been put to the jury in a combined fashion?
A.It could have been but I was sticking with the defence theory, the theory that I had discussed with my client. I believe that was the appropriate course of action to take.
We have no reason to doubt Mr Hesketh’s evidence that his cross-examination was consistent with the defence theory of the case.
With reference to the “framing” issue, we note that Mr Hesketh did explore with Ms Sharpe how she knew about the contents of the coffee jar. In the cross-examination there was the following exchange:
Q.And you told us that Jarred had noticed this coffee jar behind the microwave?
A.Yes.
Q.And you looked at the coffee jar?
A.Yeah, I did more than look at it, I handled it.
Q.And in handling it you were able to tell the police, you thought the stuff in the coffee jar was iodine or Betadine, didn’t you?
A.Yeah.
Q.And you’ve told us today because there were streaks of it coming down the side of the jar?
A.Yeah.
Q.Okay if you just —
A.A little bit of a spillage over it.
Q.— have a look at photograph 15?
A.Mhm.
Q.You can’t see any spillage in that photograph, can you?
A.No. But around the top bit, um, where the, where it has a rubber seal, that, that’s when I, the rubber seal on the top of the jar sort of thing that sits there, that’s where the leakage was from.
Q.But you were able to identify that as iodine or Betadine?
A.No, I, as, as I’ve, um, said I don’t know what it was. I assumed it was either iodine or Betadine.
Q.And that’s what you told the police, isn’t it?
A.Yes.
Q.Because you know that iodine is an ingredient used in the manufacture of methamphetamine, don’t you?
A.Now I do, that you’ve told me.
Q.So you’re saying you didn’t know that beforehand?
A.No. In my eyes iodine’s used for, ah, cleaning areas of cuts and sores and so is Betadine, it’s an antiseptic, isn’t it?
Mr Forster cross-examined Mr Hesketh on the basis that he should have put it to Ms Sharpe that because of her “esoteric knowledge” about what was in the coffee jar she had revealed herself as being a “party to the framing”. Mr Hesketh responded by saying he did not consider it was “that black and white”. While he accepted that he might have been better not to put it to Ms Sharpe directly that she knew iodine was an ingredient used in the manufacture of methamphetamine, thereby enabling the rejoinder she gave that she knew that because he had just told her, he thought that if he had put it to her in that way, he would have expected her to simply deny it. Mr Hesketh said he thought it was better to put it directly to Ms Sharpe that she was in league with Mr Mills, and referred to a question that he subsequently asked in which he suggested to Ms Sharpe that she had identified items she claimed did not belong to her and put them into Daryl’s room because she:
…had been party to this conversation with Jarred and Daryl where Daryl was asked to get involved in cooking the methamphetamine just after he moved in?
Mr Hesketh’s response to Mr Forster continued:
A. …what I’m trying to explain is that because of her personality type, if I gave her an inch she would take a mile. It became very clear she was that sort of witness. I felt that by simply putting directly to her and putting the case directly to her the way that I have the jury would be left in absolutely no doubt that it was a credibility contest between Mr Lichtwark and she and Mr Mills and that’s really what the defence theory was. Ah I felt that at that time the cross-examination’s going well because it was showing her to be a smarmy type personality.
Once again, we see no basis upon which we should criticise, after the event, decisions made by Mr Hesketh about the way in which the cross-examination should proceed. As this Court observed in R v Pointon:[12]
A mere mistake in tactics in the conduct of the defence does not of course afford grounds for a new trial. This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel.
[12] R v Pointon [1985] 1 NZLR 109 (CA) at 114.
Similarly, in R v S, this Court emphasised that where an appeal is advanced on the ground of trial counsel incompetence, it should not be the occasion for relitigating what are essentially matters of tactics and approach.[13]
[13]R v S CA1/02 31 May 2002 at [43].
We consider the second and third alleged errors of trial counsel do relate to matters of tactics and the way in which the defence was to be run.
Overall, we are satisfied that Mr Hesketh conducted the defence competently and in accordance with the appellant’s instructions. There is no substance in the errors alleged by the appellant.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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