R v Sturgeon CA364/05

[2006] NZCA 487

IN THE COURT OF APPEAL OF NEW ZEALAND

CA364/05

THE QUEEN

v

GRAHAM DONALD STURGEON

Hearing:         11 October 2006

Court:            Arnold, Gendall and Venning JJ

Counsel:         D L Stevens QC and R Frost for Appellant

M D Downs and E V Lamont-Messer for Crown

Judgment:      10 November 2006         at 11 am

JUDGMENT OF THE COURT

A        Appeal against convictions dismissed.

B        Appeal against sentence dismissed.

REASONS OF THE COURT

(Given by Gendall J)

[1]      After a jury trial before Judge McKegg the appellant was convicted on three counts  of  cultivating  cannabis,  two  counts  of  selling  cannabis,  one  count  of

R V STURGEON CA CA364/05  10 November 2006

possessing cannabis for sale, five counts of money laundering and two counts of possession of offensive weapons.   He appeals against his convictions and also the effective sentence of five years imprisonment imposed upon the lead charges of cultivating cannabis.

[2]      The first ground advanced in support of the appeal is that the Judge erred when directing the jury as to how they might approach the evidence of a defence witness, where there was a failure to give a “tripartite” direction in the usual form. The second ground of appeal relates to the convictions for possession of offensive weapons under s 202A(4)(b) Crimes Act 1961.   It was contended that the Judge failed to properly direct the jury as to the law and facts required to be established for such charges.

Background facts

[3]      The trial Judge, in his sentencing notes, summarised the evidence in the following  way.    The  Judge  said  that  the  appellant  had  been  involved  in  the clandestine business of cannabis production and dissemination for a number of years. In 1997 a white plastic bucket containing 500 grams of cannabis was found in a ceiling cavity at an address in Dunedin and a bag smelling of cannabis was found in a  rubbish  container  at  the  premises.    Palm  prints  identified  as  being  from  the appellant were found on the bag.

[4]      On 4 February 2003 the police executed a search warrant at the appellant’s farm property in a rural area about 23 kilometres from Motueka.   They found a hidden room fashioned in the appellant’s woodpile, which was capable of being used for storing or drying cannabis; 16 plastic vials of cannabis pollen; a set of digital scales; and 21 cannabis plants growing in remote parts of the farm.  In addition, a plastic 20 litre bucket was found hidden about 15 metres from the house, which contained 1,014 grams of cannabis material, valued at somewhere between $7,000 -

$8,000.   Bundles of cash, totalling $20,000 were found in the appellant’s freezer. The hidden room indicated an intention to maintain a cannabis operation, although it was not in use at the time of the search.

[5]      About 10 days later, a further search revealed an additional 66 cannabis plants growing on remote parts of the farm.   On 27 May 2003 a further search revealed small fragments of cannabis scattered on insulation batts in a ceiling cavity at the property.

[6]      There was evidence that the appellant had unexplained income between 1997 and 2003 of $100,000, although the defence had contended that the proper figure was only $63,000, and was legitimately earned income.  The jury clearly regarded this as being proceeds of drug dealing given the money laundering convictions, and the conviction on the general charge of selling cannabis during the period 1997 to

2003.

[7]      The firearms charges arose out of the police finding, during the initial search on 4 February 2003, a number of firearms on the property.  Some were locked in a cabinet and were not the subject of any charges.   But two were found outside the cabinet, each with a loaded magazine attached.   One was a semi-automatic rifle located beside the appellant’s bed.  The second was a .22 semi-automatic rifle found inside a hot water cylinder cupboard beside the lounge.

[8]      The  appellant  gave  evidence  in  which  he  denied  any  knowledge  of  the cannabis operation.  He said that he had, from time to time, cultivated a single plant or two simply for the purpose of his personal consumption.  He said that he acquired the land near Motueka in 1991, planting it in pine and other trees intending to harvest firewood.  He said he did not grow cannabis on the property, and to his knowledge no one else did either.  He denied knowledge of the bucket of cannabis found on the property, and said that his friend, Mr Graham Ferguson, put the pollen from cannabis plants in his refrigerator.  The appellant said he believed it was pollen for fruit trees.

[9]      He admitted smoking cannabis on an occasional social basis and said that he had built the hidden room in the wood shed at the end of winter of 2002 intending it to be used to grow his personal cannabis, comprising a couple of plants.  He said it was getting hard to grow cannabis outside, but that after constructing the hidden room he decided it was too risky because “everyone would have wondered why I had not sold the wood in the shed”.   He said there was no growing or other activity

involving cannabis done in the hidden room.  His evidence was that whilst cannabis was dried in the roof cavity it was only for his personal use in earlier years and nothing was ever dried there with the intention of selling it to others.

[10]     He  explained  the  $20,000  in  the  freezer  as  being  money  that  he  had accumulated over the past year from timber sales or firewood and building jobs that he had performed for cash.  He said that he had taken the cash from his safe on the day the police executed the search.  When he saw a “man in plain clothes coming down the steps, I didn’t know him, I thought who the hell is this so I hurried inside, grabbed the money as I didn’t have time to wheel out the fridge/freezer and put it in the safe.  I threw it in the freezer”.  The appellant gave other evidence that assets or income that  he had  acquired  over the  years  had  been  the  subject  of  legitimate activity, and to counter the allegation that it was derived from drug dealing.

[11]     In relation to the firearms charges, the appellant said that he had been the subject of unwanted attention and threats from a man who was mentally unstable. Because of the limited assistance the police could give in safeguarding him, he decided to leave a firearm beside his bed as a protective measure.  The other firearm in the hot water cupboard was left there, he said, to dry, after it had been used whilst hunting.

[12]     The  defence  position  was  that  it  was  Mr  Graham  Ferguson  who  was responsible for the cannabis cultivation at the farm.  The appellant’s evidence was that it was only after the police had conducted the searches at his property and found cannabis and the like that he became aware that Mr Ferguson, who he had known since 1994, had been growing cannabis on his property.   He said that this was without his knowledge and that he confronted his friend about it.

[13]     The defence called Mr Ferguson to give evidence.  Essentially, his evidence was that it was he who cultivated the cannabis on the appellant’s property, the appellant having no knowledge of it; that he grew the plants from seedlings and later cuttings; and that whilst he smoked cannabis with the appellant, the latter did not know of Mr Ferguson’s actions in growing cannabis.  He said that he had placed the cannabis in the white bucket that was found on the property.

Discussion

The drugs convictions

[14]     In dealing with the evidence of the appellant, the Judge gave a conventional tripartite direction.  He said (at [49]):

In  this  case  you  have  had the  advantage  of  having  seen  and  heard  the accused give his evidence and be cross-examined.  In general of course an accused person does not need to do that.  The fact that he does give evidence does not in any way alter the onus of proof of the essential ingredients of the charge.  That always stays on the Crown, from beginning to end of the trial. Except insofar as the positive defence in relation to Counts 7 and 8, the gun charges, is concerned the accused undertakes nothing at all when he gives evidence.  That onus stays with the Crown.  Generally it is often said that when an accused person gives evidence two main effects can occur.   You may conclude that what he has to say is the truth, the whole truth and nothing but the truth.  In that case of course you will accept what the accused has told you and you will acquit, because you will then be convinced that he had nothing to do at all with this cannabis production, and his interest was simply as a minor social smoker of really no consequence to this trial at all. Alternatively you may not believe that the evidence was the whole truth, but you may be in doubt as to what the position was.  You may think that the accused  might  be  right.    In  that  case  the  Crown  would  have  failed  to discharge its burden of proof and you would acquit.  On the other hand you might  reject  that  evidence  as  being  unreliable.    You  then  go  back  and consider all the other evidence in the trial, including the other defence evidence, to determine if the Crown has proved its case beyond reasonable doubt.

[15]     No objection is taken to that direction.

[16]     The  Judge  earlier  dealt  with  the  defence  case  and  the  evidence  of

Mr Ferguson, and in relation to that evidence the Judge said (at [46]):

I suppose at the end of the day you might think that a great deal of this case actually depends on whether you find Mr Ferguson a persuasive witness, or even if you find that what he says might just be true.  Or do you find, as the Crown puts to you, that his evidence is unconvincing and that perhaps he might have been a willing workhorse obtaining some recognition and status and access to cannabis. That is perhaps a vital issue for you to determine.

[17]     Mr Stevens QC, on behalf of the appellant, submitted that that direction was insufficient  and  that  the full  tripartite  direction,  as  was  given  in  respect  of  the appellant’s evidence, was required.

[18]     It is necessary to look at the summing-up as a whole, because the real issue is whether there is any reasonable possibility that the jury might have misunderstood where the burden of proof lay.   The Judge referred to the burden and standard of proof in his preliminary remarks to the jury.  During the course of the summing-up he again set it out in an orthodox way and went on to say, on several occasions, that the appellant did not have to prove his innocence and that it was for the Crown to prove guilt beyond reasonable doubt.  The matter was also addressed in the issues sheet given to the jury.   The Judge also expressly referred to the defence case or argument that the proof “falls far short of the high standard that lies on the Crown” given the evidence of Mr Ferguson and that (at [14]):

The defence submits that for that period [the six year period] the evidence from Ferguson must create a doubt…. And so the defence submits there is no evidence that is sufficient to prove that case beyond a reasonable doubt.

[19]     The Judge shortly thereafter said (at [16]) that the defence reminded the jury:

That it is a matter for the Crown to prove beyond reasonable doubt and points again to the Ferguson confession.

….

And the defence says all these matters create a doubt that the accused was involved, particularly again in light of the Ferguson confession, and the defence submits there is insufficient proof.  So that is the argument on those three [cultivation] counts.   Has the Crown established its case beyond reasonable doubt?

[20]     The Judge thereafter referred (at [20]) to the defence submission in relation to the appellant’s fingerprint on the bag found in Dunedin in 1997:

The defence submission in relation to that, is that the only evidence on this count is the fingerprint, and that you already know from Ferguson that he was growing on the property then, and that he was giving half his crop to people euphemistically called his principals….Ferguson said that he was bagging the cannabis at Mr Sturgeon’s home when Mr Sturgeon wasn’t there and that he was using bags that he found around the house to bag them in.  If that is acceptable that would explain, or go somewhere to explain, the print on the bag that was found.   And the defence submits that the evidence available  really  only  shows  that  the  cannabis  came  from  the  Sturgeon property and that Ferguson’s evidence is that he was the grower.  And so the defence submits that once again the evidence fails.

[21]     When dealing with the evidence relating to the cannabis in a bucket valued at between $7,000 - $10,000, and with the appellant’s fingerprints on one of the bags

inside, the Judge referred to the defence evidence of Mr Ferguson as to how the buckets and its contents were his and how he came to place it where he did.

[22]     The basis for the defence  case was the appellant’s evidence that he had nothing to do with the cultivation and supply of cannabis.  That was supported by Mr Ferguson’s evidence that the cannabis and the cultivation was his.   If the jury accepted the appellant’s evidence, or was left with a reasonable doubt about it, the jury would have acquitted.  In order to convict the appellant the jury had to reject his evidence as being untrue.  It follows that it would also have rejected the evidence of Mr Ferguson so far as that evidence sought to exonerate the appellant.  It may have been preferable for the Judge to refer to the evidence of Mr Ferguson, when giving the jury the standard tripartite direction in respect of the appellant’s evidence.  But once the jury rejected the evidence of the appellant, it was inevitable that the jury would convict.  The jury was told it had to return to the Crown evidence, which it clearly accepted.  In dealing with Mr Ferguson’s evidence the Judge left it to the jury to consider whether it found him to be persuasive (truthful) or if what he said “might just be true”.  As counsel acknowledged, a tripartite direction is not mandatory.  The essential issue is whether the Judge made the onus and standard of proof clear so that the jury understood that if there was any reasonable doubt they must acquit.   For example, see R v G CA290/02 11 November 2002 at [22].

[23]     We  are  satisfied  that  there  was  no  miscarriage  of  justice  in  terms  of s 385(1)(c) of the Crimes Act 1961 arising out of the manner in which the Judge directed the jury as to the defence evidence.

Possession of offensive weapons in any place (Counts 7 and 8)

[24]     These two counts were brought alleging offences against s 202A(4)(b) of the Crimes Act 1961.  That provision provides every one is liable to imprisonment for a term not exceeding 2 years:

(b)       Who has in his possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.

[25]     Subsection (5) provides that it is a defence if the person charged proves that he did not intend to use the offensive weapon to commit an offence involving bodily injury or the threat or fear of violence.

[26]     Mr Stevens argued that the Judge failed to properly direct the jury on the law, and facts, relating to these charges.  The appellant had told the police that he had the firearm beside his bed because of trouble with the mentally compromised and unstable man who had directed threats against to him.  The appellant said that he left the firearm beside his bed hoping that if the man were to approach him he would be able to “scare him off”.  There was some evidence from other witnesses supporting the opinions or views of the appellant.  Counsel submitted that all the circumstances were  required  to  be  taken  into  account,  other  than  any  evidence  given  by  the appellant or his later statement.   He contended that the evidence of the dispute between  the  appellant  and  the  other  man  formed  part  of  the  prima  facie circumstances attaching to the charges concerning the weapons.

[27]     Counsel submitted that whilst the Judge correctly directed the jury that it had to  be  satisfied  the  appellant  was  in  possession  of  the  offensive  weapon,  he misdirected them by failing to adequately state that once the jury had determined that the appellant had such possession then it was required to examine the appellant’s circumstances from, and with reference to, all the evidence.  Counsel accepted that there could not be reference to what the appellant said was his state of mind in deciding whether such circumstances showed a prima facie intention to use an offensive weapon to commit an offence involving bodily injury or the threat or fear of violence (R v Haqiqzai CA158/02 18 December 2002).   However, counsel emphasised that the appellant’s circumstances which had to be considered when assessing the prima facie intention included the evidence as it related to the unstable man.  He argued that the Judge was required to tell the jury that in considering the first step involving the prima facie assessment, they had to consider whether the actual circumstances admitted of the reasonable possibility that the appellant was in possession of the weapon in order to defend himself or another by using no more force than reasonable.   If that was the position, the prosecution in respect of the weapons must fail.

[28]     What the Judge said to the jury in directing them in respect of the charges, which was paralleled by the Issues Sheet that he made available to the jury, was as follows (at [33] – [36]):

The Crown must prove three elements.

First, that the accused had possession of an object.  Of course in both cases the object is a rifle.  Possession means that he had custody or control over the rifle and intended to have custody and control.  There is no issue about that.  He obviously did, and he said he did and there is no issue over Point one.

The second point is that the object in question, the rifle, was an offensive weapon.  That means it is an article capable of being used for causing bodily injury.  Well, no argument about that.

Thirdly, and that the circumstances prove prima facie an intention to use the rifle to commit a crime of bodily injury, that is physical harm that is more than just trifling or transitory or the threat or fear of violence.  Now, prima facie means proof of circumstances sufficient to show that intent, but in the absence of evidence to the contrary.  So what was there?  At that point when the Police arrived there was the rifle, the Nirenco, by the bed, just between the bed and the dresser thing that you saw and there was the Ruger .22 in the hot water cupboard.  Both of them with magazines installed and with bullets in the magazine, although nothing in the chamber.   Here again the Act provides a statutory defence to the charge.  Should the Crown prove those first three items, 1 to 3, to the required standard, then the accused has an opportunity to rebut or negate that proof, but the burden of proof that the accused would then assume is the balance of probabilities.  That is, that it is more probable that what he says is correct than not.   That is the lesser standard.

[29]     We note that the Issues Sheet originally prepared by the Judge was changed at counsel’s request prior to distribution to the jury.

[30]     The  term   “prima   facie”  carries  its   usual   meaning,   namely  “at   first appearance”.  The prima facie or “at first appearance” intention is to be ascertained objectively with reference to the actual circumstances and in conjunction with the mere possession; Haqiqzai at [27] and [28].  Mr Stevens’ submissions were intricate and semantic but in our view, if accepted, leave little room for the reverse onus contained in the section to apply.   Once the circumstances show on their face an intention to commit the requisite offence, the onus shifts to the appellant to show an innocent purpose.  As Anderson J said in Haqiqzai at [27] and [28]:

[27]     Care  is  needed  in  defining  the  relevant  circumstances  in  any particular case.   They are such circumstances  as  are  apparent.    If,  in  a

particular case, what the actual circumstances prima facie show admits the reasonable possibility that a person was in possession of a weapon in order to defend himself or another by using no more force than was reasonable in the apparent circumstances, it must follow that the Crown will not have proved the offence proscribed by s202A(4)(b).

[28]     But  if  the  apparent  circumstances  admit  no  such  reasonable possibility, a mere assertion by an accused in other circumstances, such as in the course of a Police interview or testifying at trial, that the weapon was not possessed with an intention to use it to commit an offence, will not be a circumstance at the relevant time.  There will be no obligation on the Crown to exclude the possibility of the alleged exonerating intention; it must be for the accused to establish that defence pursuant to subs (5).

[31]     So it is on the face of the facts which attach to the possession that the prima facie  intent  applies.    Here,  those  circumstances  included  the  presence  of  two weapons outside the locked gun case with the magazines containing ammunition attached.  There was drug material in and around the home and a large amount of cash in the freezer.  At first sight, no observer could know of any background animus as between the appellant and the other man.   The allegations or matters as they related to the other man could of course be given in evidence designed to discharge the onus on the appellant.  This was attempted.  Clearly, however, the jury did not accept that the onus on the appellant to rebut the prima facie position had been discharged.

[32]     In respect of the weapon in the hot water cupboard, the defence contention was that it was there to dry after becoming wet whilst hunting the previous evening. Counsel argued that the Judge’s direction was confusing and incorrect.   What the Judge said (at [40]) was:

As to the second rifle, the first charge relates to the Nirenco beside the bed, but as to the second rifle you will recall, the defence submits that the reason he had that was that it was drying after being wet while out hunting the night before. The evidence was that he had put it in the hot water cupboard so that it did not rust.  Mr Stevens, for the defence, again submits to you that it is for the Crown, who brings this case, to prove this,  but the accused may rebut it, that the defence clearly has rebutted all those suggestions with the evidence that   was   given,   and  that   evidence  is   supported   by   the   remarkable performance of Mr Syder which drew the attention of the Police to him.

[33]     In the context of the summing-up as a whole there is no confusion.  What the Judge was doing was putting Mr Stevens’ submission to the jury.   Mr Stevens’ submission was, as it was in this Court, that the explanation and other evidence was

required to be taken into account in determining whether the circumstances prima facie showed the prohibited intention of s 202A(4).  If the explanation was confusing that was solely because counsel’s submissions fell into such category.  As we have said, the submissions if accepted left little room for the reverse onus.   The direction was simply a statement that if the defence had proven the matters which it said rebutted the prima facie position, and discharged the onus, the accused should be acquitted.  There was no error or misdirection in relation to the second firearm.

[34]     We are satisfied the Judge did not err in the manner in which he directed the jury in respect of those two counts.  We reject the semantic analysis and argument presented on behalf of the appellant as being in accordance with neither the statute nor the decided authorities.

Conclusion

[35]     For the foregoing reasons no miscarriage of justice has arisen and there can be no concerns about the verdicts delivered by the jury.   As the appeals against conviction must be dismissed, and the appeal against sentence was dependent upon the quashing of Counts 7 and 8 relating to the possession of the firearms, the appeal against sentence is also dismissed.

Solicitors:

Bamford Law, Nelson for Appellant

Crown Law Office, Wellington