The Queen v Dey

[2006] NZCA 20

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/05

THE QUEEN

v

CHRISTOPHER JOHN DEY

Hearing:23 February 2006

Court:William Young P, Williams and Gendall JJ

Counsel:A S Greig for Appellant

E M Thomas for Crown

Judgment:7 March 2006 

JUDGMENT OF THE COURT

THE APPEAL AGAINST THE CONVICTIONS IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Williams J)

Issue

[1]       On 6 September 2005 the appellant, Mr Dey, was convicted by a jury in the Christchurch District Court on counts of cultivating cannabis at Kawau Crescent and Ashwood Street in Christchurch in June-September 2004.

[2]       He now appeals to this Court against convictions on the grounds that a miscarriage of justice may have occurred in that :

(a)the Judge’s summing-up was slanted in the prosecution’s favour and omitted salient aspects of the defence;

(b)the Judge’s answer to a jury question altered the basis on which the case had proceeded up to that point.

Facts

[3]       The Crown case was that hydroponic cannabis growing operations were discovered by Police on execution of search warrants at the two addresses in question on 8 September 2004.  At Ashwood Street there were thirteen cannabis plants growing under a plastic tent with the usual lights, irrigation, thermostat and timers.  At Kawau Crescent the hydroponic operation was in a hole 4m square and 2m deep excavated under the house with the house supported on scaffolding.  Fifty‑four cannabis plants were under cultivation, again with irrigation, heating and growth-control systems. 

[4]       Mr Dey admitted buying cannabis from Kawau Crescent, occasionally staying there, and being aware that a Mr Green who lived at that address was growing cannabis there, but denied his involvement in any way with the cannabis‑growing operation at either address.  In his statement he said the fact his fingerprints had been found on a number of cannabis-growing items was explained by his moving those items while staying at the house.  He gave no explanation for a suggested similarity between the scaffolding supporting the house and that used by his father’s scaffolding company.

[5]       Apart from the fingerprints, the principal Crown evidence came from Mr Green who, by the time of Mr Dey’s trial, had been convicted of cultivating cannabis at Kawau Crescent and sentenced to imprisonment, and a Ms Strachan, Mr Green’s partner.

[6]       Mr Dey neither gave nor called evidence at trial.

Claim of bias in summing-up

[7]       During the trial, Mr Greig’s vigorous cross-examination of Mr Green and Ms Strachan was designed to undermine their credibility.  Not only was Mr Green attacked for his participation in the cannabis-growing operation but he had to knowledge that his list of previous convictions included a number for dishonesty and one for perjury.  The cross-examination of Ms Strachan sought to undermine her credibility by suggesting her evidence was incorrect because of her relationship with Mr Green and was designed to improve her partner’s chance of parole.

[8]       During the course of his summing-up, the Judge directed on issues such as similar fact and inferences.  He illustrated conventional directions on those topics by examples drawn from evidence.  However, Mr Greig’s complaint on this aspect of the appeal is that all the Judge’s examples were drawn from Crown counsel’s closing address or represented the Crown view.  In none of the examples did the Judge refer to the defence answers to the points raised by the Crown.

[9]       In particular, the Judge gave lengthy directions designed to assist the jury in its assessment of the credibility and reliability of Mr Green and Ms Strachan.  He sub-divided that topic into nine factors, and again illustrated each with reference to evidence.  Again, Mr Greig’s submission was that the illustrations were drawn entirely from the Crown’s closing or represented the Crown’s view and were not counter-balanced by reference to defence rejoinders.  That particularly applied to the defence answer to the fingerprint evidence where the experts had not, he suggested, been wholly able to discount the possibility of Mr Dey’s innocent handling of the items on which his prints were found.

[10]     Overall, Mr Greig submitted the summing-up was slanted in the Crown’s favour, appeared to give the Judge’s imprimatur to the Crown case, failed to neutralize references to the Crown case by reference to defence contentions and thus risked miscarriage of justice. 

[11]     The point had been taken immediately on the jury’s retirement on completion of the summing-up but the Judge declined to give further directions.

[12]     It is well-established that Judges in their summings-up are entitled to comment, even robustly, on the facts.  It is equally well-established that summings‑up must be read as a whole.

[13]     We have considered the summing-up in its entirety and conclude there was no risk of miscarriage of justice in the way in which it was phrased.  In directing on such matters as similar fact and inferences, it was good practice for the Judge to link his directions to examples from the evidence and natural that those examples should be largely those on which the Crown relied.  There is no obligation on a Judge at that stage of the summing-up to rehearse defence contentions.  Indeed, given the nature of such topics, it may have been confusing for the jury to have had the defence viewpoint included in the directions.

[14]     As far as the lengthy direction on credibility is concerned, we are satisfied that the illustrations given by the Judge were sufficiently neutrally phrased as to be most unlikely to have the effect for which Mr Greig contended.

[15]     And overall, we note the Judge later dealt at some length with the defence case, making all the points which doubtless Mr Greig had made on the appellant’s behalf.  No criticism is levelled at that part of the summing-up.

[16]     We therefore conclude that on this aspect of the case no miscarriage of justice has been demonstrated.

Re-defining the issues

[17]     As part of the Judge’s opening remarks the jury were given written material which included the following:

To prove a charge of cultivating cannabis the Crown must prove three elements:

(1)That the accused cultivated a plant.

“Cultivate” means taking any step which is intended to assist a plant to grow, and it therefore includes sowing, planting, feeding or caring for the plant.  It is not necessary that the plant be grown to maturity.

(2)That the plant was a cannabis plant.

(3)That, at the time when he took the steps to assist the plant to grow, the accused knew that it was a cannabis plant.

[18]     Whilst in retirement, the jury asked a question which read:

Does cultivate [ie taking any step which is intended to assist the plant to grow] include erecting a structure, either with or without knowledge of its intended use?

[19]     After noting the question included a rider “relating to the laying of pipes and the assembling of lights”, the Judge replied:

If a person erects a structure, knowing and intending that it be used to grow cannabis, that person would be “taking any step which is intended to assist a cannabis plant to grow”.  That is because anyone who knowingly and intentionally assists or encourages another person to commit an offence is guilty of the offence which is then committed.

However, if a person erects a structure without know of its intended illicit use, the third element of the offence, i.e. knowledge that the plants which were to be grown were cannabis plants, would not be satisfied.

[20]     Mr Greig submitted that, up to that stage, the trial had been run solely on whether the appellant could be proved to have been involved in the cultivation of the cannabis plants as opposed to participation in the construction of the hydroponic operation and that the Judge, in answering the jury’s question as he did, changed the whole basis of the trial to that point.  He submitted the Judge’s answer should have been to direct the jury to acquit Mr Dey if it found he had done nothing to assist in the tending or growing of the plants.

[21]     Mr Greig acknowledged there was little, if any, New Zealand authority on the topic.  The only case to which he could point was R v Watson CA384/99 and CA507/99 8 May 2000 but Mr Greig acknowledged that in Watson the Crown introduced a theory during its closing address alternative to that on which the trial had been based.  The change was thus at a point where the defence had an opportunity to respond, unlike, he submitted, the position in the present appeal.  However, he also relied on R v Gascoigne [1988] Crim LR 317 where, in a theft case, in response to a jury question on a different topic, the Judge, over counsel’s objection, included a direction on the doctrine of recent possession.  This was the first time the topic had been raised in the trial.  Appeals against the resulting convictions were allowed on a number of bases including that it was “wholly inappropriate” for the Judge to raise the recent possession point in answer to an unrelated jury question.  Further, in R v Falconer-Atlee (1974) 58 CrAppR 348 one of the grounds on which conviction for theft was quashed was that the Judge had left to the jury an alternative basis in law for conviction which had never been put by counsel.

[22]     For the Crown in this case, Mr Thomas submitted that, although not the dominant theme of the prosecution, the possibility of Mr Dey’s involvement in the setting up of the hydroponic growing operations had always been before the jury and was thus an aspect of the evidence with which he should have expected to be required to deal.  Gascoigne and Falconer-Atlee were, therefore, he submitted, distinguishable.  He submitted, in reliance on Watson, that no prejudice to the appellant had occurred.

[23]     Though no transcript of counsel’s opening and closing addresses was available, we were given typescripts of the Crown’s notes of both.

[24]     In opening on the elements of the charges, the Crown, whilst focusing on the tending of the plants, said that the “accused was either involved directly himself in cultivating the plants or, at the very least, he was a party to the cultivation at each address” and defined “party” as the accused doing something which assisted some other person to cultivate cannabis.  The “real issue” was whether the Crown could prove that Mr Dey was “involved in the cultivation of plants at each of these addresses”.

[25]     In closing, Crown counsel’s notes said the “accused was a partner in the operation with Mr Green at Kawau Crescent and he was a partner in the operation with Mr Pritchard [the occupier] at Ashwood Crescent”.  The review of Mr Green’s evidence mentioned Mr Dey having “brought equipment, dug hole” and Ms Strachan’s evidence implicated the accused “in the operation at Kawau Crescent”.  After detailing the fingerprint identifications, Crown counsel noted their consistency “with the Crown’s case that [Mr Dey] helped set the operation in the cave up and was involved in every step of the way”.

[26]     We note, too, that on a number of occasions during the summing-up the Judge referred to the necessity for proof of Mr Dey’s knowledge and involvement in the cannabis-growing operations at either address including its installation.

[27]     Having considered those matters, we are of the view that although the main thrust of both prosecution and defence ‑ and the Judge’s note ‑ was directed at whether Mr Dey’s involvement in the husbandry of the plants could be proved it must always have been open for the jury to consider whether there was proof of his involvement in the cultivation of the cannabis in the sense of participating in the installation of the hydroponic operations with the necessary intent and knowledge.

[28]     The jury’s question was therefore a logical one and should not have been unexpected.  Since the Judge’s answer was, in law, unchallengeable, it must follow that no basis has been made out for concluding that there was a miscarriage of justice on this aspect of the trial as well. 

Result

[29]     No basis has been made out to conclude that there is any miscarriage of justice in relation to either of the criticised aspects of Mr Dey’s trial.  His appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington