O'Carroll v The Queen

[2005] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND

CA3/05

THE QUEEN

v

DAVID O'CARROLL

Hearing:22 August 2005

Court:O'Regan, Potter and Doogue JJ

Counsel:P J Kaye for Appellant

J C Pike for Crown

Judgment:24 August 2005 

JUDGMENT OF THE COURT

Appeals against conviction and sentence are dismissed.

REASONS

(Given by Doogue J)

Introduction

[1]       David Gerrard O’Carroll was convicted in the District Court at Auckland, following trial by jury, of conspiring both to manufacture and supply methamphetamine, then a Class ‘B’ controlled drug.  He was further found guilty of manufacturing methamphetamine and being in possession of ammunition other than for a lawful, proper and sufficient purpose.  Those convictions occurred at the end of a five week trial in which co-accused by the names of Lawrence Schwalger, Desmond Loke and Phillipa Toni Williams were also convicted of the conspiracy offences.  Judge Bouchier, the trial Judge, subsequently sentenced the appellant to six and a half years imprisonment for the drug offences and to six months imprisonment, concurrent, for the Arms Act offence. 

[2]       Mr O’Carroll now appeals against both his convictions and sentence.  His appeal against his convictions is based on two grounds.  First, that there was radical error by his trial counsel in that she is said to have been ill-prepared and not ready for trial and secondly that she failed to call witnesses whom she had been instructed to call.  Secondly, that the trial Judge, having sequestered the jury from 3 November 2004 until the completion of the trial on 12 November 2004 because of fears as to the security of the jury, failed to warn the jury that this did not reflect on the appellant in any way.  It is submitted that each of these matters gives rise to a miscarriage of justice.  The appeal against sentence is upon the basis that the sentence imposed was manifestly excessive.

[3]       The Crown opposes the appeal in its entirety.

[4]       In support of the appeal the appellant sought leave to adduce evidence relating to the events which led the Judge to sequester the jury and the perception of the appellant and others to the effect of that upon the jury.  The evidence of the appellant also traverses the complaints he has in respect of his trial counsel.  The Crown has not objected to the introduction of this evidence and leave is accordingly given for it to be adduced.  The Crown in response provided an affidavit from trial counsel. 

Background

[5]       The appellant was found at his home in possession of equipment for the manufacture of methamphetamine, digital scales, 100 point bags, $70,000 in cash, four boxes of ammunition, 51 grams of pseudoephedrine crystals, just under an ounce of pure methamphetamine together with smaller personal amounts and a quantity of crushed tablet material soaked in methanol.  He had a film canister containing 27 grams of methamphetamine hidden between his buttocks.  The pseudoephedrine could have been converted into between 25 and 38 grams of pure methamphetamine.  There was evidence consistent with the manufacture of methamphetamine at the premises.  There were communications between the alleged conspirators from which the jury could determine the appellant was a party to the conspiracies.

[6]       The trial Judge took the view on sentencing that the jury in convicting the appellant in respect of the drug charges must have accepted the Crown case in respect of those charges.  Correspondingly the jury must have rejected the appellant’s explanations for the various items of damning evidence relating to him.  The Judge was satisfied that the jury accepted that the appellant was involved in the manufacture of methamphetamine with a Mr Clegg and that he was also involved in supplying the drug.  The Judge took the view that such decisions were clearly open to the jury on the incontrovertible facts relating to what was found in the appellant’s possession.  The Judge was further of the view that the jury were entitled to accept the Crown case that the appellant was taking over Mr Clegg as a cook.  The Judge refers in her sentencing remarks to the last of some six recorded conversations between the appellant and Mr Clegg.  The Judge notes that it is not the words that were the telling thing but the tone of the conversation.  From it the Judge was clear that the appellant was in command of the operation relating to the manufacture and supply of methamphetamine albeit for a relatively brief period.

[7]       It was the appellant’s case at trial that he was contacted by Mr Clegg for assistance to get a car back from a Mr Swazbrook and that that was the only reason why the appellant became involved.  Mr Clegg was his de facto brother-in law.  The appellant was focussed on getting him out of trouble and obtaining the possession of the car from Mr Swazbrook.  However, as already noted the appellant’s conviction on the conspiracy counts required the jury to reject that defence. 

[8]       So far as the manufacture of methamphetamine was concerned, the appellant’s defence was that it was clear from the messages from Mr Clegg that the manufacture had not taken place.  However the jury clearly rejected that version of events in finding the appellant guilty.

[9]       So far as the count involving the possession of ammunition was concerned the appellant accepted that he was in possession of the ammunition but said it belonged to someone else.  There were no firearms found and the appellant had no rights to possession of the ammunition.  Once again it is clear from the jury’s finding of guilt that they rejected the appellant’s explanation.

Radical error by trial counsel?

[10]     The appellant’s first complaint is that taken overall the conduct of trial counsel meant that his case was ill-prepared and not ready for trial.  In support of this complaint submissions are made as to the background to the trial.  However such matters are of no moment unless there was actual radical error by trial counsel in the conduct of the trial leading to a miscarriage of justice.  We can only be concerned with the competence of counsel in fulfilling the functions of trial counsel and not what led to her appointment or the background to the trial except to the extent that it may touch upon her competence at trial. 

[11]     The appellant’s second submission under this head is of more moment.  The appellant submits that he wished to call the man, Mr Mark Swazbrook also known as Mr Mark Rudolph.  He stated that he had arranged for Mr Swazbrook to attend at his first counsel’s office but that that did not occur.  It is common ground that prior to trial Mr Swazbrook was seriously injured as a result of a methamphetamine bake and was not available to give evidence at trial.  The evidence that the appellant said Mr Swazbrook would give at trial was detailed in his affidavit and was also put before the jury in the appellant’s evidence at trial.  The evidence was to support the appellant’s case that his only involvement was to assist Mr Clegg in obtaining the car taken by Mr Swazbrook and that that was how he ended up in possession of the incriminating evidence against him.

[12]     The appellant deposes that Mr Swazbrook was to give evidence corroborating the fact that he, the appellant, knew nothing about the pills that Mr Swazbrook was coercing Mr Clegg to “turn into the drug ‘P’”.  The appellant goes on to state:

The transcript records me telling Mr Swazbrook that it was my fault that the pills had been lost because I had caused the Police to enter the address after crashing my car outside. 

[13]     The appellant further says that:

The evidence would be that a couple of days before Operation Illusion concluded I also went to a motel in town where I was told I could find Mr Swazbrook manufacturing at that location.  I was given an ounce of ‘P’ and $15,000 as compensation for the vehicle which was a late model BMW.

[14]     The appellant further complains in an affidavit in reply to that of trial counsel that he wished to call a Miss Genevieve Bramley, who was responsible for a number of the text messages located on his phone.  He says that trial counsel failed in respect of her as well as in respect of Mr Swazbrook.

[15]     It is submitted that the failure by trial counsel to call these prospective witnesses prejudiced the appellant’s case and that it affected her ability to properly cross-examine the Crown witnesses and present the appellant’s case. 

[16]     Additional complaints are made by the appellant in an even later affadavit in reply to Crown counsel’s submissions that trial counsel should have adduced additional evidence from witnesses who were called on his behalf.

[17]     Trial counsel deposes that she obtained briefs of evidence from the appellant and four other witnesses nominated by him.  One of those was Mr Clegg who she met twice before he gave evidence.  She says that she was briefed by earlier counsel about the witness Mr Swazbrook.  She had no contact with Mr Swazbrook, who she said was at all material times in a drug-induced coma in hospital having suffered severe injury when a methamphetamine manufacture exploded.  She deposes that it was accepted by the appellant Mr Swazbrook would not be testifying.  She makes no mention of the possible witness Miss Bramley, which is understandable as there is no reference to her in the appellant’s affidavit in support of his appeal.

[18]     The appellant in response to trial counsel’s affidavit makes it clear that his concern related to text messages.  It is the evidence of the appellant that at least 12 texts were for Mr Clegg and not for the appellant.  He deposes that in his view this was not brought sufficiently to light in his case at trial and highlighted the need for Miss Bramley to be called to give evidence.  He says for the first time in his affidavit in reply, that she was on the Crown witness list, but not called and that he gave instructions to his trial counsel to call her and that was not done.

[19]     The appellant both in his first affidavit in support of his appeal and his affidavits in reply traverses a number of matters where he complains about the presentation of his case to the jury largely in respect of the way in which the evidence was led.  However neither he nor his counsel have been able to point to any matter which could possibly pass the threshold of radical error. 

[20]     We would note that there is no affidavit from Mr Swazbrook, Miss Genevieve Bramley or the other witnesses relied upon by the appellant.  Regardless of the appellant’s assertions there is simply nothing before the Court as to the evidence or additional evidence, including documentation, that the witnesses might have given.

[21]     In respect of the possible witness, Mr Swazbrook, it was clear before and at trial that he could not be called as a witness because of his physical state.  There is nothing before the Court to indicate that Mr Swazbrook was prepared to testify that he was the owner of the drugs found in the witness, Mr Clegg’s, home.  As is submitted for the Crown it seems implausible to suggest that Mr Swazbrook would have testified for the appellant that he was a manufacturer of methamphetamine and the owner of the pills found in the appellant’s house, or indeed that he had coerced Mr Clegg’s car from him.

[22]     There is nothing to show that trial counsel was clearly instructed to call the witness, Miss Bramley, or that her evidence would have been of any assistance to the defence.  The appellant’s complaints relating to her and Mr Swazbrook and the witnesses actually called at trial are simply unsupported assertions. 

[23]     There is therefore nothing before the Court to show any basis for the assertion that there was radical error on the part of trial counsel.

Did the sequestration of the jury lead to a miscarriage of justice?

[24]     The sequestration of the jury arose out of a series of associated events.  The trial Judge was concerned with the behaviour of certain supporters of the accused, not necessarily the appellant, and a report from a Court Attendant that she thought a cellphone had been used to photograph the jury. 

[25]     The Judge recorded in a minute of 3 November 2004 in the presence of counsel but in the absence of the accused, the jury and the public, that there was a matter of security which she wished to discuss.  She recorded that she had earlier expressed concerns with the way certain members of the public were looking at the jury and had had counsel warn them.  However, the Judge further recorded that one of the supporters of the accused had very definitely been hand signalling to the appellant throughout his cross-examination by Crown Counsel.  In addition that individual appeared to the Judge to be exposing all his tattoos which may or may not have been his intention.  She further records the matter of the possible use of a mobile phone to photograph the jury.  She further records that she had the impression that certain members of the public were prepared to act in a way which could be regarded as intimidatory of the jury particularly when it appeared that further supporters of the accused were arriving at the Court. 

[26]     The trial Judge determined that one of the individuals who had been hand signalling should not be allowed further into the Court but she did not wish to restrict the other supporters of the accused.  She decided that for the security of the jury she would ensure that they were sequestered over lunch and would later be provided with transport to their homes for security purposes.

[27]     However, in the afternoon of the same day the Judge decided, and it is recorded in the transcript, that she addressed the jury that from then on they must be sequestered.  She said:

This is for your personal safety and I do not wish to alarm you by saying that but I have made the decision.

[28]     There was no other explanation as to the reason for the sequestration.  There was no language either at that time or in the summing up that the jury should not take this into account in any respect in reaching their verdicts.  Conversely there was no language indicating that the sequestration had anything whatever to do with the appellant or his co-accused. 

[29]     The appellant endeavours to provide evidence both from himself and others that there was no justification for the Judge taking the steps that she did.  However, that is irrelevant at this time.  The only issue can be whether the manner of the sequestering of the jury could, in the circumstances, have resulted in any miscarriage of justice. 

[30]     It is submitted for the appellant that to tell the jury that they are being sequestered for their personal safety must have caused the jury alarm.  That and the constant attention of the Police and security staff until the end of the trial without anything by way of explanation could only have been extremely prejudicial from the appellant’s point of view.  That is particularly so when it occurred during the course of his case.  There is no suggestion that the appellant was responsible for any misconduct either in or out of the Court proceedings.

[31]     Mr Kaye helpfully referred us to the case of R v Gay [1976] V R 577, 583.  In that case the trial judge had sequestered the jury without giving any reason as to the cause and had sensibly advised the jury that no inference should be drawn from his order for sequestration unfavourable to the accused or the Crown.

[32]     It is accepted that the Judge had a discretion to sequester the jury.  It is, however, submitted that her discretion was exercised improperly because of her failure to direct the jury that it did not relate in any respect to the appellant and his co-accused and that no inference detrimental to them or the Crown should be drawn from her order. 

[33]     We find it difficult to see how any miscarriage of justice can possibly be suggested in respect of the decision by the Judge to sequester the jury during the course of the trial.  While it may be a relatively unusual practice it occurs from time to time.  The jury is of course sequestered during the course of the deliberations at the end of the trial and there is no suggestion that that leads to a miscarriage of justice. 

[34]     The only possible basis upon which a miscarriage of justice could arise would be if the jury was given the impression, either directly or indirectly, that their sequestration was because of matters for which the appellant was responsible.  It is not suggested that there is anything of that description involved in this case.  The Judge would have been wise to follow a course similar to that adopted in Gay.  It is better not to advise the jury of the reason for the sequestration and to inform the jury that no inference should be drawn from the order for sequestration unfavourable to the accused or the Crown.  However, her failure to do so could not be said by itself to give rise to any miscarriage of justice. 

[35]     As is noted by Mr Pike it is significant that none of the team of defence counsel in the case sought any direction from the trial judge either at the time of her direction or in her summing-up on the issue.

[36]     There is accordingly nothing in this ground of appeal. 

Sentence appeal

[37]     It is submitted for the appellant that the total effective term of six and a half years imprisonment is manifestly excessive.  The appellant submits that that is particularly so when the sentences imposed on other persons associated with the same course of offending are taken into account.  Reference is made to the following offenders.  Mr Desmond Loke was sentenced for similar offences to three years and nine months imprisonment.  Mr Lawrence Schwalger was sentenced for similar offences to three years imprisonment.  Mr Tony Michael Jacomb, who was head of the so-called organisation, was sentenced to six years nine months imprisonment following a plea of guilty (subject to appeal to this Court).  Mr Michael Cavanagh was sentenced to 12 years imprisonment for what was a central role in the conspiracy to supply drugs.

[38]     The Judge in sentencing the appellant accepted that he had a primary role in the conspiracy for a brief period.  She accepted there were aggravating features, as urged upon her by the Crown, but no mitigating features.  She took the view that the sentence of six and a half years imprisonment under appeal was appropriate and imposed the concurrent sentence of six months imprisonment in respect of the Arms Act offence.

[39]     The appellant, who was 40 at the time of sentencing, lived with his partner and her two children aged 15 and nine years on a mortgage free lifestyle block.  He told the writer of the pre-sentence report they had bought the block in an attempt to remove themselves from the Headhunter gang culture that had been part of their lives for the past 20 years.  He has a history of offending including the supply of Class ‘A’ and Class ‘B’ drugs and conspiring to supply such drugs.  In 1996 he received a substantial term of imprisonment for such offending combined with serious offences of violence.  The appellant said he had been in employment since he was released from prison in 2000.  He was not prepared to discuss with the report writer his earnings or his financial dealings.  He told the report writer that at the time of his alleged offending he was smoking up to a gram of pure methamphetamine a day.  He claimed, however, that he had since been able to stop using it and had not used drugs for the past 18 months. 

[40]     The report writer expressed the opinion that the appellant was not motivated to address the factors that contributed to his offending, namely, his involvement with those engaged in the manufacture of drugs and his use of methamphetamine.  However, he was prepared to attend any programme or course that might help reduce his inevitable sentence of imprisonment.  The report records the appellant’s perception that he completed nine years imprisonment in 2000 and had spent around 13 years of his adult life incarcerated.  However while the appellant in 2000 indicated that he needed to break his ties with the Headhunter gang it was clear that he had not done so for him to be involved in the current offending. 

[41]     The appellant’s counsel at sentencing maintained that a sentence of between four and a half and five years imprisonment was the appropriate penalty, although it was conceded that the conviction on the ammunition offence could attract an additional penalty.  It is again submitted that that was the appropriate course and that the total sentence imposed of six and a half years imprisonment was manifestly excessive particularly when the position in respect of the co-offenders is taken into account. 

[42]     The Crown submits the sentence imposed was well within the Judge’s sentencing discretion and we are disposed to agree.  We cannot see that it is excessive let alone manifestly excessive given the appellant’s history and involvement here in serious drug offending combined with the other Arms Act offence.  The sentence was certainly within the range available to the Judge.

Decision

[43]     The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington