R v Edmonds

[2009] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

CA645/2008
[2009] NZCA 54

THE QUEEN

v

REGINALD EDMONDS

Hearing:23 February 2009

Court:William Young  P, Chisholm and Heath JJ

Counsel:J B Samuel for Appellant

S J Mount and M J Inwood for Crown

Judgment:6 March 2009 at 11.30 am

JUDGMENT OF THE COURT

Appeals against conviction and sentence dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1]       Following trial in the Auckland District Court before Judge Gittos and a jury the appellant was found guilty of knowingly permitting premises to be used for the cultivation of cannabis (s12(1) of the Misuse of Drugs Act 1975).  The trial had taken three days.  He was sentenced to two years imprisonment. 

[2]       This is an appeal against both conviction and sentence.  The appeal against conviction relies on two grounds:

(a)The jury’s verdict cannot be supported having regard to the evidence. 

(b)An unbalanced and unfair summing-up by the Judge gave rise to a miscarriage of justice.

Alternatively it is alleged that the sentence was manifestly excessive. 

Background

[3]       The Crown case was that between 1 November 2006 and 28 February 2007 the appellant permitted his rural property at Barnett Road, Auckland, to be used for the cultivation of cannabis.  That property is a disused chicken farm.  It comprises eight large sheds and a dwelling, and has been owned by the appellant (through a company) since about 2004.  He admitted that at all relevant times he lived in the dwelling on the property.

[4]       At about 5.30am on 28 February 2007 a motorist noticed a fire at the property.  After ringing 111 she drove up the driveway to the dwelling occupied by the appellant.  Her uncontradicted evidence was that when she told the appellant about the fire he said he would call someone.  However, when she told him she had already rung 111 he closed the door in her face and after that she saw him “rushing around” the lounge area and “picking up things”.  Although she remained in the vicinity of the property for five or seven minutes she did not see any activity on the driveway leading to the house during that time.

[5]       When the Fire Brigade arrived they found that one of the sheds on the property (shed 7) was on fire.  After the fire was extinguished a substantial number of cannabis plants were found at the rear of the shed.  The police were called.

[6]       The police found that, in addition to the fire damaged shed, two other sheds (sheds 3 and 4) were being used for the cultivation of cannabis.  All these sheds contained potted cannabis plants, a system of lighting above the plants, associated transformers, and ventilation systems.  Polythene had been used to line the walls.

[7]       A total of 613 potted cannabis plants at various stages of growth were located.  The largest were 1.2 metres high.  Another 108 pots containing rooting systems with the tops cut off were also found, together with some dried cannabis material.  One of the sheds also contained a makeshift bedroom.

[8]       The police also discovered that another shed (shed 1) was in the process of being converted for the cultivation of cannabis.  Internal framing had been partially completed and a portion of the shed had been lined out with polythene. 

[9]   In another shed (shed 8) there were motor vehicles, a caravan, and tools.  The tools were consistent with a panelbeating operation. 

[10]     When the appellant was spoken to by a police officer on the morning of the fire he said that sheds 5, 6 7 and 8 had been leased for the last four months to four people for the purpose of panelbeating.  He said he did not know the tenants by name or where they lived, but that they paid rent of $2,000 a week in cash.  The appellant said that he did not go into the sheds, but that he did go past them to dump rubbish.  He said he was in the process of organising a lease and showed the officer a blank lease agreement.  He said he had a business plan to grow watercress in sheds 1, 2 and 3 and that his son was currently using one of the sheds for panelbeating. 

[11]     During the afternoon of the fire the police searched the appellant’s house.  Nothing of interest was found.

[12]     Also during that afternoon the appellant was questioned by a detective.  He told the detective that the sheds were ready to be leased to:

… just some people, I don’t know them or anything, they were just going to come back when I got the leases … they just paid me a couple of thousand dollars and they were going to pay $5,000 for the lot … they were taking the lot [the sheds] as they were cleaning them out, they were using them. 

On further questioning the appellant said he did not know the tenants’ names, anything about them, or how to get hold of them. 

[13]     The appellant also told the detective that the tenants had started clearing the sheds out in November.  He repeated that he never looked in the sheds, had no interest in them, and had not noticed gear being brought in.  He said that he was not there all the time and that people were “in and out” all the time.  He also said that he was unaware that some sheds had been “blacked out” and he had no idea that the tenants were growing cannabis in the sheds.

[14]     DNA and fingerprint analysis revealed only one identifiable fingerprint.  There was, however, no forensic evidence directly linking the appellant to the cannabis operation.  The people involved in the cultivation were not located by the police. 

[15]     Initially the appellant was charged with cultivation of cannabis.  However, following depositions the indictment was amended (at the request of the Crown) to allege that the appellant had knowingly permitted the premises to be used for the cultivation of cannabis. 

Can the jury’s verdict be supported having regard to the evidence?

[16]     Mr Samuel argued that the prosecution had failed to tender any evidence from which the jury could safely infer two ingredients of the offence: the appellant knew that cannabis was being cultivated on his property; and he deliberately refrained from taking any steps to prevent the unlawful use.  Counsel claimed that there are parallels between this case and R v Sweeney [1982] 2 NZLR 229 in which this Court quashed a conviction for permitting premises to be used for the cultivation of cannabis because there was insufficient evidence to support the conviction.

[17]     Underlying the appellant’s argument is the proposition that there was no evidence from which the jury could safely infer how long the cannabis plants had been on the appellant’s property.  Mr Samuel argued that the entire crop could have been moved to the appellant’s property over the period of a day, or days at the most, and that under those circumstances it was entirely reasonable that the appellant might not have noticed anything sinister.  Counsel emphasised that this was a rural property, other people had stayed at the property, people were coming and going, and the cannabis operation could have been set up covertly under the umbrella of a legitimate clearing out of the poultry equipment and establishment of a panelbeating operation.

[18]     This ground of appeal relies on s 385(1)(a) of the Crimes Act 1961 which directs the Court to allow the appeal if it is of the opinion that the verdict of the jury must be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.  In R v Owen [2008] 2 NZLR 37 the Supreme Court said:

[5]       …The second concept concerns a verdict which cannot be supported having regard to the evidence.  That will be so when there is no evidence capable of supporting it.  This can arise particularly when a specific factual ingredient of the offence lacks evidentiary support. 

Mr Samuel did not attempt to argue that even if the evidence supported the verdict, it was nevertheless unreasonable. 

[19]     Notwithstanding Mr Samuel’s submissions we are satisfied that there is evidence to support the jury’s verdict.  It is common ground that the appellant’s underlying contention that the cannabis operation could have been moved on to the appellant’s property over a day or two without his knowledge was squarely before the jury.  Clearly it was rejected.  Equally clearly the jury were satisfied that the Crown had proved that the appellant knew about the cultivation of cannabis and deliberately refrained from doing anything to prevent it.  There was ample evidence to support those findings. 

[20]     First, the jury was entitled to infer that this was a substantial cannabis operation, albeit at a relatively early stage of development.  It involved hundreds of plants, some over a metre high, in three sheds.  Steps were also being taken to convert a fourth shed to the same use.  A police officer with 30 years experience said that it was “the biggest cannabis operation whilst in its infancy that I’ve ever seen”.  And Detective Cox, who had been a builder before he became a policeman, gave evidence that it would have taken a number of days, probably weeks, to set up the operation.

[21]     Second, coupled with the size of the operation, was the layout of the site.  The house occupied by the appellant is only a short distance from the sheds involved in the cultivation of cannabis and the appellant acknowledged that he went past the sheds to dump rubbish.  Added to that, Detective Cox gave evidence that it should have been possible to smell the cannabis outside the sheds “most of the time”.  Given that situation it was open to the jury to conclude that the appellant’s explanation that he was not at the property all the time did not provide an answer to the Crown’s allegation. 

[22]     Third, judging from their question, the jury was also interested in finding out who paid the power account.  It was not disputed that the appellant paid the power account, and the jury was so informed.  While there was no evidence about the quantum of the power accounts, the jury was nevertheless entitled to use its common-sense when considering whether the cannabis operation (including the lighting system) shown in the photographs might have been conducted without the knowledge of the person paying the accounts.

[23]     Fourth, it was also open to the jury to use their common-sense when assessing the appellant’s explanation about the leasing of his premises.  His lack of knowledge about the tenants could only be described as extraordinary.  It was open to the jury to reject his explanation on the basis that it did not carry the ring of truth. 

[24]     Finally, the defendant’s conduct after he was told about the fire was also highly relevant.  The uncontradicted evidence was that once he had been told by the motorist that she had rung 111, he closed the door in her face.  Then she could see him rushing around the house picking up things.  And there was no sign of him leaving the house during the five to seven minutes that she remained at the end of the driveway. 

[25]     We agree with Mr Mount that this case is not analogous with R v Sweeney.  It involved a completely different situation.  First, compared with the hundreds of plants involved in this case, Sweeney only involved three plastic containers (fashioned from empty soft drink bottles) containing cannabis seedlings.  Second, there was uncontradicted evidence in Sweeney that he had not been living in the premises continuously during the relevant time and that other people often stayed at the premises.  That can be contrasted with the appellant’s admission that he was living in the dwelling at all material times.  Third, whereas the indictment in this case specified a period of some months, the Sweeney indictment specified one day only. 

[26]     This ground of appeal fails.

Did the summing-up give rise to a miscarriage of justice?

[27]     For the appellant Mr Samuel alleged that the summing-up was completely unbalanced in favour of the Crown and that this gave rise to a miscarriage of justice.  Although Mr Samuel acknowledged that he had not raised this issue with the trial Judge at the conclusion of the summing-up, he said that this was because the summing-up was comprehensively unbalanced and “rectification was not possible”. 

[28]     This ground of appeal focuses on the Judge’s summary of the Crown and defence cases.  Mr Samuel suggests that, having spent considerable time summarising the Crown case and raising his own questions about the nature of the defence (all of which was favourable to the Crown), the Judge’s summary of the defence case was “cursory”.

[29]     Alleged defects in the Judge’s summary of the Crown and defence cases were traversed by Mr Samuel in considerable detail.  We will discuss those allegations shortly.  Suffice to say at this stage that the allegations covered numerous topics and Mr Samuel emphasised that it was the cumulative impact that has given rise to the miscarriage of justice. 

[30]     In response Mr Mount reminded us that this was a relatively brief trial revolving around the issue of whether the appellant knew that cannabis was being cultivated on his property.  He noted that the Judge had made it clear to the jury that they were free to disagree with any views that he might express about the facts.  Mr Mount also submitted that the parts of the summing-up attacked by the appellant were merely summaries of the Crown and defence cases which were fair and balanced.  The Crown disputes that there has been any miscarriage of justice. 

[31]     In R v Keremete CA247/03 23 October 2004 this Court said:

[18]     … A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge.  Rival contentions with respect to the factual issues will normally be summarised (R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task.  Treatment of matters affecting the cogency of evidence is not required as a matter of law:  R v Foss (1996) 14 CRNZ 1 (CA) at p 4.

[19]     The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other:  R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA).  Inevitably these are ultimately matters of degree and judgment. 

We now consider whether the Judge’s summing-up conformed with these requirements and, if not, whether a miscarriage of justice has arisen. 

[32]     We begin with the appellant’s criticism of the Judge’s summary of the Crown’s case. 

[33]     Mr Samuel argued that when the Judge was discussing the Crown’s contention that there was an “irresistible inference” that the accused must have known what was going on, he should have directed the jury that it would be unsafe for them to draw that inference.  We do not accept that contention.  As discussed earlier, there was evidence from which the inference could be drawn.  It was very much a jury matter.  And the jury had the benefit of a conventional inferences direction, including a warning that they were not entitled to guess or speculate.  It would have been wrong for the Judge to have effectively directed an acquittal by telling the jury that they could not draw an inference which lay at the heart of the case. 

[34]     It was alleged that during the course of summarising the Crown case the Judge misinterpreted the evidence in relation to two matters.  First, there is the Judge’s comment:

… you will recall there was reference also to there being some pots with roots and stumps of plants in them where the tops had been cut off and you might think that they represented the end of the production.

Mr Samuel claimed that there was no evidence that any cannabis had been produced.  We disagree.  Given that there were 108 pots containing rooting systems with the tops cut off, the Judge was perfectly entitled to say what he did.  On the other hand, we accept that the second matter raised by Mr Samuel does involve an inaccurate statement by the Judge.  His Honour said to the jury that the appellant’s business plan was to develop watercress in sheds 1 – 4.  In fact, however, the evidence was that his plan was to develop watercress in sheds 1 – 3.  But we do not see any significance in this error. 

[35]     Now we turn to the allegation that the Judge used unnecessarily emotive language which supported the Crown case and undermined the defence case.  When summarising the Crown case, the Judge made a comment to the effect that the defence case was that the cannabis operation had been:

… suddenly whisked in over a day or two without this man being aware of it.  It is a matter for you, members of the jury, what you make of all that. 

Understandably Mr Samuel took exception to the word “whisked”.  He said it was emotive and demeaned the defence case.  While we accept that it was both unnecessary and unwise for the Judge to have used the word, we have not been persuaded that, of itself, this was a matter of great moment in the overall context of the summing-up.  Nevertheless it is a matter to be taken into account in the overall assessment. 

[36]     Next Mr Samuel was critical of the Judge’s observations with reference to the power account:

As to your questions … members of the jury, as it turned out they were in some measure able to be answered by Detective Cox and what he had to say was not challenged in cross-examination.  One of those matters about which he was asked was, whose name was the power account in and he said it was in the name of the accused.  That was not challenged although Mr Samuel was critical of the police for not producing the power accounts.  He did not challenge what the officer said about the power accounts being in the accused’s name.

You might ask yourselves how much power might have been consumed running the various installations that you can see depicted in the photographs put before you.  Who else was living in the house at the time was another of your questions and that was answered along the lines it was the accused, his wife and some children.  You might ask yourselves what degree of attention a large number of potted plans growing under artificial light might require in terms of managing the lighting and ventilation systems and the watering and so forth of them and who was on hand to assist with that.  They would need to be fairly close by you might think.  

We reject Mr Samuel’s submission to the effect that because the power account had not been produced the Judge’s comments were “absolutely baseless”.  In our view the Judge was entitled to raise these hypothetical questions with the jury and no unfairness or imbalance eventuated. 

[37]     Finally, in relation to the Judge’s summary of the Crown case, Mr Samuel was critical of the Judge’s concluding remarks: 

From all of that the Crown invites you to an inference that the accused was surprised by the fire and that his explanation was not credible and that all of the evidence to which the Crown thus refers points irresistibly to the inference that he was at least aware of what was happening in the sheds and that indeed is all that the Crown needs to prove.  

Counsel argued that the suggestion of surprise was not supported by the evidence and that there could be a “host” of explanations for the appellant’s behaviour.  Although we are puzzled by the Judge’s reference to the accused being surprised, to us the important point is that the “host” of explanations were put to the jury by Mr Samuel and it was over to the jury to decide whether to accept them.  In any event, the Judge was only repeating the substance of the Crown case.

[38]     Now we turn to the Judge’s treatment of the defence case. 

[39]     The first complaint was that the Judge used language that was both inaccurate and emotive when he told the jury that the motorist had seen the appellant “scurrying” around inside the house.  In fact the witness said that she had seen him “rushing” around.  While there was a slip of the tongue on the part of the Judge, we do not consider this to be a matter of significance when viewed in the overall context of the summing-up. 

[40]     Immediately after the “scurrying” comment the Judge told the jury “the defence spin on that [the motorist’s evidence] is quite different”.  Mr Samuel claimed that this would have left the jury with the impression that, whereas the Crown’s interpretation of the motorist’s evidence should be taken as gospel, that was not so for the defence who were twisting the matter.  He argued that the Judge’s reference to “spin” was analogous to R v Morgan [2003] NZCA 286 at [21]. In that case this Court decided that a Judge’s reference to jurors having to be “pretty thick” to think that the Crown had not proved the charges was inappropriate.

[41]     While we do not accept the analogy Mr Samuel sought to draw with Morgan, we do accept that the reference to “spin” was inappropriate and unfair to the defence.  But any damage arising from this comment needs to take into account that, immediately after making the comment, the Judge accurately summarised the specific points raised by defence counsel with reference to the motorist’s evidence and said that it was a matter for the jury.  And as Mr Mount pointed out, the Judge had made it clear earlier in his summing-up that the jury should reject any views he expressed if they did not coincide with the jury’s view. 

[42]     The Judge concluded his summary of the defence case with this observation:

So basically, members of the jury, it is a matter of fact for you to determine.  If this man is to be found guilty then you would need, all of you, to be sure on the basis of all the evidence that you have heard that you can reliably draw the inference that he was not being truthful to the Police when he told them he did not know about the cannabis being in these sheds and that he did in fact know about it and therefore by his inaction permitted the buildings to be used for that purpose. 

Mr Samuel claimed that this direction effectively reversed the onus.  We disagree.  Earlier in his summing-up the Judge had directed the jury that the onus was on the Crown and that there was no onus on the defence.  In this passage the Judge was reiterating that before the jury could arrive at a guilty verdict they had to be sure that the appellant’s explanation could be rejected. 

[43]     There was also a faint suggestion that the Judge should have given a lies direction.  We reject that proposition.  A denial of offending by an accused, as was the case here, does not of itself give rise to the need for a lies direction. 

[44]     When considering whether the matters that we have identified in [34], [35] and [41] gave rise to a miscarriage of justice, we keep in mind that this was a short trial and that the Crown had a strong case on the primary issue (whether the Crown had proved that the appellant knew about the cultivation of cannabis).  Perhaps we should also add that if the jury were satisfied on that issue it was virtually inevitable that it would be satisfied that the appellant deliberately refrained from taking any steps to prevent that use.  We repeat that early in his summing-up the Judge had given a clear direction to the jury that it was entitled to disagree with any views as to the facts that he might express, and that most of his editorial comments included a disclaimer that it was “a matter for them” or something to that effect. 

[45]     On our analysis (with the benefit of a transcript of the closing addresses by counsel) we are satisfied that the Judge accurately summarised both the Crown and defence cases.  The fact that the summary of the Crown case was longer than the summary of the defence case does not necessarily indicate an imbalance or unfairness.  Significantly, Mr Samuel conceded in response to a question from the bench that he was not able to point to anything that had been left out in the Judge’s summary of the defence case.  We do not accept that the Judge summarised the defence case in a “cursory manner”.  To the contrary, he appears to have accurately summarised all the points that the defence was seeking to make. 

[46]     In the end the appellant’s complaint comes down to the Judge’s editorial comments, particularly in the course of his summary of the defence case.  While we accept that the Judge’s comment about the defence “spin” was completely inappropriate, we do not accept that that comment, in combination with the other editorial comments made by the Judge, has given rise to a miscarriage of justice in this case.  Having said that, it would have been preferable for the Judge to make any editorial comments about the respective cases separately from his summaries of the Crown and defence positions.  The purpose of the summary of cases is to remind the jury of the way in which those cases were put by counsel and any “editorial” comment, at that stage, puts the summing-up at risk of challenge on appeal.

[47]     This ground of appeal also fails. 

Sentence appeal

[48]     When he was sentenced the appellant was 60 years of age.  Although he had previous convictions involving a variety of offending including aggravated robbery, he had not offended for 13 years.  His only previous drug related conviction was for possessing cannabis in 1974.  The probation officer assessed the appellant’s risk of re-offending as low and recommended home detention. 

[49]     Under s 12(2)(c) of the Misuse of Drugs Act the maximum penalty for the offence was three years imprisonment.  The Crown contended that because the cultivation was at the upper end of the scale in terms of R v Terewi [1999] 3 NZLR 62, the appellant’s culpability was also high and that an appropriate starting point would be between 12 and 18 months imprisonment. On the other hand, Mr Samuel contended that the accused’s culpability should not be assessed by reference to the scale of seriousness of the cultivation but rather on the basis of what, if anything, he received by way of commercial premium in the rent of his property.

[50]     Having rejected Mr Samuel’s proposition the Judge said:

[19]     I start therefore on the basis that this is a cultivation at the high end of the scale and that the accused’s involvement in it, given his living arrangements on the property and the scale of what was going on, must have been one of more than simply turning a blind eye. 

He considered that there needed to be a deterrent sentence and that the personal interests of the accused must necessarily be a secondary consideration. 

[51]     A starting point of two years and three months was adopted by the Judge.  Without specifying the size of the uplift, the Judge concluded that there should be some uplift for previous convictions, particularly the conviction for aggravated robbery which involved a firearm and incurred a sentence of four years imprisonment.  He then took into account the favourable probation officer’s report, appellant’s age and health concerns and arrived at a final sentence of two years imprisonment.  Given the gravity of the offending the Judge was not prepared to consider home detention. 

[52]     In support of the contention that the sentence was manifestly excessive Mr Samuel advanced two primary arguments.  The first argument was that the Judge’s starting point was too high because the Judge had failed to give proper weight to various facts including: the short period over which the cultivation could have occurred (four months); absence of evidence as to value, financial gain to the appellant, or anything linking him to the material in the sheds; the fact that the appellant had not been charged with cultivating the cannabis; and he had not offended for 13 years.  The second argument was that the Judge had erred in principle by linking the appellant’s culpability to the scale of the cultivation.  Alternatively Mr Samuel argued that the Judge should have approached the matter on the basis that the cultivation was, in terms of R v Terewi, within category one. 

[53]     When determining the appellant’s culpability the Judge was entitled to take into account the scale of the cannabis cultivation that he had permitted to take place on his property.  In all the circumstances it was open to the Judge to conclude that the appellant’s culpability justified a starting point of 75% of the maximum penalty.  We do not accept that any of the facts relied on by Mr Samuel undermine the Judge’s starting point.  Having arrived at that starting point the Judge was entitled to add a modest (although unspecified) uplift for the appellant’s previous offending.  The fact that the appellant had not offended for 13 years did not render a modest uplift wrong in principle or inappropriate.  When it came to discounts the Judge took into account all relevant matters, namely, the favourable probation officer’s report, the appellant’s age, and his health. 

[54]     In the end result we have not been persuaded that the sentence imposed on the appellant was manifestly excessive or that the Judge erred in principle when arriving at that sentence.  The appeal against sentence also fails. 

Result

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

Solicitors:
Crown Law Office, Wellington