R v Martin

[2007] NZCA 386

IN THE COURT OF APPEAL OF NEW ZEALAND

CA161/06
[2007] NZCA 386

THE QUEEN

v

LINDA MARTIN

Hearing:23 July 2007

Court:Chambers, Randerson and Keane JJ

Counsel:G J King for Appellant

K Raftery for Crown

Judgment:31 August 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

[1]       Linda Martin arrived at Auckland Airport with more than 3 kilograms of cocaine, a class A controlled drug, in her luggage.  The cocaine was at 80% purity, with an estimated street value of over $4 million.

[2]       Following trial by jury, Ms Martin was convicted of importing the drugs.  She was later sentenced to eight years and five months’ imprisonment.  She now appeals against her conviction and sentence. 

Issues on the appeal

[3]       Mr King, for Ms Martin, raised four issues on the appeal against conviction. 

[4]       The first issue is whether Priestley J’s summing up was erroneous in how it dealt with the accused's knowledge of whether the drugs were in her luggage. 

[5]       The second is whether the summing up was erroneous in the directions it gave as to inferences.

[6]       The third issue is whether the summing up was defective in not having a so‑called tripartite direction. 

[7]       The final issue is whether the verdict was unreasonable. 

[8]       There is only one issue on the sentence appeal: did the judge give a sufficient discount for mitigating factors? 

Was the summing up erroneous in how it dealt with knowledge?

[9]       The sole issue at trial was whether Ms Martin knew the cocaine was in her luggage.  Mr King had two complaints as to how the judge dealt with knowledge.  First, he submitted that the judge told the jury that “wilful blindness” would suffice.  Mr King suggested that was wrong: Ms Martin could be found guilty only if she actually knew the drugs were there.  Mr King also developed a fallback argument.  It was this: even if wilful blindness can suffice, it was not adequately explained. 

[10]     We begin our response by stating the law.  Mr King is wrong in suggesting wilful blindness will not suffice.  In a case such as this, it will suffice if the Crown can prove beyond reasonable doubt that the accused (importer) had her suspicions aroused as to what she was carrying, but deliberately refrained from making further inquiries or confirming her suspicion because she wanted to remain in ignorance.  If that is proved, the law presumes knowledge on the part of the accused.  The fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry.

[11]     We base that proposition on what the Supreme Court of Canada said in Sansregret v The Queen [1985] 1 SCR 570 at 584-586. See also R v Barbeau (1996) 110 CCC (3d) 69 at 92-95 (QCA), He Kaw Teh v R (1985) 60 ALR 449 at 457-458 (HCA), and R v Kural [1986] VR 673 at 676-678 (FC). There is a very useful discussion on this topic in Simester and Brookbanks Principles of Criminal Law (3ed 2007) at [4.5.1].  The two professors suggest that the concept of “wilful blindness” can arise in two situations.  The first arises where the accused “shuts his eyes and fails to inquire ‘because he knows what the answer is going to be’”, citing R v Crooks [1981] 2 NZLR 53 at 58 (CA). The second situation arises “if the means of knowledge is easily to hand and D realises the likely truth of a matter but refrains from inquiry in order not to know”. While we do not disagree with the professors’ categorisations, we consider that the difference between the two situations is largely semantic. We think in most situations the “wilful blindness” test could be summarised as we have done at [10] above. Certainly trial judges should attempt to encapsulate the “wilful blindness” concept in one formulation, not two, when providing an explanation to a jury. The precise formulation in any given case should be carefully tailored to the facts of that case.

[12]     We should make clear that the concept of wilful blindness is to be distinguished from recklessness, which involves actual knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur: Sansregret at 584. Recklessness in this sense is not sufficient to establish knowledge of the illicit nature of the drugs. If the possibility of recklessness arises on the facts, trial judges will need to make this distinction clear to the jury and give appropriate directions.

[13]     Having set out the law, we now turn to what Priestley J did.  In fact, His Honour did not, in our view, leave the concept of “wilful blindness” to the jury at all.  He held the Crown to the tougher test of having to prove actual knowledge on Ms Martin’s part.  We quote the following excerpts from the “directions” part of the summing up to prove that point:

·The issue in this trial is quite simply whether the accused Linda Martin, who arrived at Auckland International Airport with the cocaine in her luggage, knew that what she brought into New Zealand was cocaine or a prohibited drug. This knowledge of importing a prohibited drug is important. If, and this is not the case here, somebody genuinely believed they were smuggling watches or birds’ eggs into a country but were duped, that would not be enough to prove knowledge of importing drugs. The Crown’s job is to prove beyond reasonable doubt the accused knew she was importing a prohibited drug into New Zealand: at [26].

·It is the Crown’s job to satisfy you beyond reasonable doubt that the accused had that knowledge. You must be sure that she knew the contents of her luggage included a prohibited drug. If you are sure that she had that knowledge, then you must bring back a guilty verdict. Equally, if you are not sure, if you have reasonable doubt, then you must bring back a not guilty verdict: at [27].

·You must consider all the evidence on that issue and from it, work out whether it is a safe inference for you to draw that Linda Martin knew her suitcase contained a prohibited drug: at [29].

·If you are to draw the inferences that Mr Northwood has asked you to draw, then you must be sure that they are safe inferences to draw and that you are satisfied beyond reasonable doubt the accused had knowledge of the contents of her luggage. If you are not sure, then you should not draw the inference because it would not be safe to do so: at [30].

·In this whole exercise of considering the evidence, drawing inferences, and deciding whether you are satisfied beyond reasonable doubt that the Crown has proved knowledge, you must, in the forefront of your mind, remember that this is not a trial about the accused’s foolishness. It is not a trial about whether you are suspicious over her involvement with Nigerians. The test is not about whether she possibly had knowledge or probably had knowledge. The test is whether you are sure, satisfied beyond reasonable doubt, that she had knowledge: at [31].

·So that is what the trial is all about. The Crown says the accused arrived in New Zealand knowing full well that she had a prohibited drug in her suitcase. The defence says that the accused had no such knowledge; that she did not know what was in her suitcase; and that the Crown is unable to prove that knowledge beyond reasonable doubt: at [32].

[14]     In light of those clear directions, we can only conclude the jury, in finding Ms Martin guilty, must have been satisfied beyond reasonable doubt that she did actually know there were drugs in her luggage. 

[15]     We accept that the judge, when summarising the Crown case, did refer to a Crown submission that wilful blindness would suffice.  For instance, the judge recorded the prosecutor’s submission in this way at [45]:

Mr Northwood says people can’t pretend they don’t know things which are obvious from what is going on around them.  People can’t be wilfully blind or shut their eyes to the obvious. 

[16]     And later (at [47]):

Mr Northwood says that she knew there was a contact in Brisbane.  She knew something was not right.  The Crown says that in all these circumstances the accused is deliberately closing her eyes to something which in fact she knows. 

[17]     These submissions by the prosecutor, and his expansion upon them, should not have been left unexplained by the judge.  There is no point in a judge mentioning a submission without explaining how it fits into the directions the judge is giving or has given the jury.  But the judge’s failure to grapple with “wilful blindness” caused no prejudice to the accused, only to the Crown.  The Crown was entitled to a wilful blindness direction in case it could not get home on actual knowledge. 

[18]     We therefore conclude on this first issue that, while the judge did not deal with the issue as completely as he might have, no prejudice was caused to Ms Martin.  The jury were instructed to find her guilty only if they could be sure she actually knew the drugs were in her luggage.  We accept some members of the jury may have been puzzled about the concept of wilful blindness, this having been raised by Mr Northwood in his final address to them.  But there is no evidence to support the view that, even if tempted, they pursued the concept.  For instance, they did not ask any questions on the topic.  Significantly, defence counsel at trial (not Mr King) did not seek any additional or clarifying directions.  In these circumstances, it would be inappropriate for us to speculate now as to whether the jury might have gone down an ill-explained “wilful blindness” path despite the judge’s clear direction to find Ms Martin guilty only if they were sure she knew the drugs were there.

[19]     The first ground of appeal therefore fails. 

Was the summing up erroneous in the directions it gave as to inferences?

[20]     As we have said, the sole issue in the trial was whether Ms Martin knew the drugs were in her luggage.  The Crown had no witness who could say they had told her the drugs were there.  The Crown case relied entirely on inference. 

[21]     Mr King had two complaints about the way in which the judge directed on inferences.  The first related to this passage in the summing up:

[10]   Now in this case, as you heard from Mr Northwood yesterday, the Crown asks you to draw the conclusion from all of the circumstances and all the evidence that the accused did have knowledge that she was importing drugs.  The Crown says that this conclusion can be drawn from such facts as her willingness to allow Nigerian criminals to use her; her knowledge of the type of activities Nigerians in South Africa were involving in including dealing with cocaine and heroin; the fact that her suitcase was taken away from her in Brazil and substituted with a very heavy suitcase that she could hardly lift; her willingness to go on a training trip; her knowledge of what had occurred to her daughter Lindy when Lindy arrived in London; and evidence of that type.

[22]     Mr King complained that the judge erred in that passage by not identifying the counter-arguments relied on by the defence.  Mr King submitted that, on the crucial issue of inferences, the judge, at this very early stage of the summing up, provided the jury with the Crown case, but nothing for the defence. 

[23]     We do not accept that criticism.  The judge was explaining how the Crown was seeking to rely on inference in order to prove knowledge.  The defence case did not rely on inference; the defence case simply was that it was unsafe to draw the inferences the Crown sought to draw.  In the context of the overall summing up, there was nothing unfair or unbalanced about this explanation.  The summing up, viewed overall, was a model of balance; if anything, as explained in the previous section of these reasons, it was unduly favourable to Ms Martin.

[24]     Mr King’s second complaint is based on the following passage in the summing up:

If, based on the same evidence, you think that two conclusions are equally open, one favourable to the accused and the other one not, then to choose between them obviously would be to guess.  In that case, you should not draw the conclusion that is unfavourable to the accused, because quite simply it would not be a safe conclusion to draw.

[25] Mr King submitted this direction was “fundamentally flawed”. Mr King said this was a one issue trial, that issue being whether the Crown could persuade the jury to draw the inference Ms Martin knew the drugs were in her luggage. Mr King submitted that the jury, faced with the direction set out at [24] above, “would have approached the critical issue of inference of knowledge on the basis that, unless they were satisfied 50% or more that the appellant lacked knowledge, they were to draw the Crown inference that she did”.

[26]     We agree the summing up would have been clearer had that direction been omitted.  It is, of course, a standard form direction, but it is not particularly helpful in circumstances where the sole inference in issue in the case is one which the Crown is required to prove beyond reasonable doubt. 

[27]     Notwithstanding that, we are quite satisfied this passage would not have misled the jury. The judge made it clear on numerous occasions that the jury had to be satisfied beyond reasonable doubt that Ms Martin knew the drugs were in her luggage before the jury could convict. If the jury had a reasonable doubt about her knowledge, then she was to be acquitted. Some of the references to that test are included in the excerpts at [13] above. There were other references in the summing up as well.

[28]     The second ground of appeal fails. 

Was the summing up defective in not having a so-called tripartite direction?

[29]     Ms Martin did not give evidence, but she had given a lengthy exculpatory statement to the police.  That statement was in evidence.  The judge did not give the standard tripartite direction, explaining the possible conclusions the jury might draw from the accused’s evidence.  Priestley J did, however, give the following direction:

[23]   Statements made and interviews given by the accused to the police and to customs officers are not sworn evidence in the witness box, but they are part of the material for you to consider.  What you make of the truthfulness, accuracy and weight of those statements made by the accused is for you to decide.  In the same way that you may accept parts of what a witness said in evidence, and not accept other parts, you may accept parts of what was said in statements and not other parts. 

[30]     Mr King accepted that “the standard tripartite direction is generally only given when an accused person gives evidence”.  He submitted, however, that that direction is “philosophically … equally applicable where an accused has given police a lengthy exculpatory statement, which if true would mean that the accused was in fact innocent”. 

[31]     We reject this ground of appeal.  First, it is not mandatory for the trial judge to give the tripartite direction even where an accused has given evidence, still less where she has not.  Secondly, the more appropriate direction in circumstances where an accused has merely given an out of court statement is the direction the judge in fact gave.  Indeed, the judge’s direction was a straight lift from the judges’ benchbook.  Generally speaking, an accused who elects not to give evidence on oath and not to be cross-examined cannot expect the benefit of the tripartite direction’s favourable tone. 

[32]     The important thing was that the jury should be instructed as to the use they could make of the out of court statement: R v F (CA402/05) 23 March 2006 at [31]‑[34].  The judge did provide such an explanation. 

Was the verdict unreasonable?

[33]     Mr King’s final submission on the conviction appeal was that the verdict was unreasonable.  He referred to the fact this court is currently reviewing the appropriate test on an appeal under s 385(1)(a) of the Crimes Act 1961: see R v Munro CA33/07.  Mr King effectively acknowledged that, under the traditional test of R v Ramage [1985] 1 NZLR 392 (CA), this ground of appeal could not succeed, but he expressed the hope this court would adopt a test such as the “lurking doubt” approach said now to be in favour in England.

[34]     Whatever test is ultimately adopted, we are quite satisfied that the present case would not fall within it.  This was a very strong Crown case.  The suggestion Ms Martin thought “she was only taking part in a dry run, with no actual drugs”, to use Mr King’s words, was fanciful.  Had wilful blindness also been raised (as it should have been), the Crown case would have been overwhelming.

[35]     The appeal against conviction fails.

Did Priestley J give a sufficient discount for mitigating factors?

[36] Priestley J adopted a starting point of 12 years’ imprisonment. He then allowed a 25% discount (three years) for Ms Martin’s co-operation with the authorities, her good record, and her being a first offender. He allowed a further seven months’ discount for the fragile state of her health and for the fact that she was to a large extent duped by Nigerian operatives in South Africa, leading to, what the judge described as, a “genuine lack of appreciation of the seriousness of what [she was] doing”: at [30]. That resulted in an end sentence of eight years five months’ imprisonment. The overall discount from the starting point was 30%.

[37]     Mr King did not dispute the starting point, although he submitted it was at “the high end of the range”.  We do not agree with that description.  The starting point was entirely appropriate. 

[38]     So the focus is on the discount.  Mr King accepted the judge had correctly identified the principal mitigating factors; the challenge relates to whether sufficient allowance was given for them.  Mr King submitted the discount should have been five years (42%), leaving an end sentence of seven years’ imprisonment.  That submission is unrealistic.  The maximum discount for an early guilty plea plus assistance to the authorities is 60%: see R v Hadfield CA337/06 14 December 2006 and the cases there cited .  Of that 60%, half (30‑33%) represents a very early guilty plea.  Here, there was no guilty plea. 

[39]     While Ms Martin did assist the authorities, her assistance was not in the same league as Mr Hadfield’s.  She did not take part, for instance, in a controlled drop.  Nor was she required to give evidence against co-offenders.

[40]     Mr King cited two authorities in support of the submission a greater discount should have been provided.  The first was R v Z (CA138/00) 27 June 2000. That was an arson case. This court upheld the sentencing judge’s seven year starting point. This court increased from one year to two years (28%) the discount for, what the court described as, “important assistance to the police in unrelated matters”: at [12]. The nature of that assistance is not made explicit, but what the court did note is that the assistance was such as to place the appellant “in very real danger, and that danger will endure for some significant time”: at [12]. The assistance appears to have been much more significant than Ms Martin’s assistance here. Indeed, the assistance appears to be in the Hadfield league.  Z does not provide support for Mr King’s submission. 

[41]     Mr King’s other case was R v D (CA43/00) 23 March 2000. This case involved the importation of ecstasy, a class B controlled drug. This court upheld the sentencing judge’s starting point of 10 years. The appellant “pleaded guilty at the earliest opportunity”: at [2]. He assisted the police by undertaking a controlled drop, which netted the consignee. He then gave what this court described as “good evidence at the trial of the consignee”, who was convicted and sentenced to eight years’ imprisonment. In addition, the appellant had “post-sentence” provided additional “assistance to the police”, the details of which were not specified. All in all, this court considered an overall discount of six years (60%) was required. Of that 60%, however, half would represent the very early guilty plea. So the case is on all fours with Hadfield.  The case, far from showing Priestley J’s discount was too niggardly, shows it was entirely appropriate, if not slightly generous. 

[42]     Mr King has not established that the discount was too small, nor that the end sentence was manifestly excessive.

[43]     The appeal against sentence is dismissed. 

Solicitors:
Crown Law Office, Wellington