The Queen v Eade
[2002] NZCA 110
•23 May 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 89/02 |
THE QUEEN
V
MARK DUNCAN EADE
| Hearing: | 22 May 2002 |
| Coram: | Blanchard J Hammond J Gendall J |
| Appearances: | R G Glover for Appellant B J Horsley for Respondent |
| Judgment: | 23 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY HAMMOND J |
Introduction
Mr Eade was charged with cultivating cannabis and possession of cannabis for sale. He pleaded guilty to the cultivation charge; and not guilty to the possession for sale charge. He was convicted by a jury in the District Court at Christchurch on that charge.
On 15 March 2002, Mr Eade was sentenced by a District Court Judge to 18 months imprisonment on the cultivation charge, and to 21 months on the possession of cannabis for sale, the sentences to be served concurrently. He now appeals against his conviction on the possession of cannabis for sale charge. Appeals against his sentences have been abandoned. They are dismissed.
Background
Mr Eade is 38 years old. He has been employed for some years at the Clandeboye Dairy Company in Temuka; he is a hard worker and a valued employee of the company; and he enjoys a respectable income of $50,000 per year.
Mr Eade has had distinct health problems for the past 15 years or so. He suffered a work injury in 1986 in Dunedin in which he sustained a shattered heel. At that time he was off work for four months. There are significant ongoing effects from the injury. In 1989 he suffered another injury when working as a fitter/turner. A gas cylinder dropped onto his right leg. By the early 1990s, he had had significant hip surgery. He was classified by ACC as 65% disabled, but it is to his credit that he has continued to work full time.
In June of 2001, the police executed a search warrant on Mr Eade’s home in Temuka. They found a room which had been specifically set up for growing cannabis. Entry into that room could only be gained through a panel in a hall cupboard. There were six lamps in the room, below which were growing four cannabis plants. They were not in healthy condition and were only some 15-20 cm tall. Another four dead cannabis plants were found under the lights.
The police also found 1.8 kg of dried cannabis at the property. Most of this substance was found outside the house. About 328 grams of poor quality and probably unsaleable cannabis was found in a bag under a BBQ lid. Another 1500 grams was located in a dog kennel, in two airtight ammunition tins. This was good quality cannabis. Further cannabis weighing 119 grams was found on top of a plywood sheet which was effectively the ceiling of the growing room in the house. A small tin of cannabis was found in a pocket of jacket.
This good quality cannabis contained a high percentage of head material. It was estimated by an experienced police sergeant to be worth approximately $16,000 if it was sold in one pound lots, and more if sold in one ounce lots. The Judge took the view for sentencing purposes, that the cannabis was worth “approximately $16-17,000”.
Mr Eade’s case was straight forward. The quantity of cannabis found in his possession was such that the presumption under s.6(6)(e) of the Misuse of Drugs Act 1975 applies viz., that the cannabis was presumed to be for the purpose of sale. The onus was on Mr Eade to demonstrate (on the balance of probabilities) that all of this cannabis was for his own consumption. He sought to discharge the burden by admitting that he is a user of cannabis, but he said it was for analgesic purposes only, because of the ongoing pain he suffers from his disabilities. His case was therefore that this cannabis was all cultivated and possessed by him solely for that purpose, and it was not for sale.
The Conviction Appeal
Background
The Crown evidence was largely formal, and most of it was read to the jury. It detailed the search, what was found, and it went to the location, character, quantity and value of the cannabis.
Two witnesses were to be called for the defence: Mr Eade himself, and Professor Paul Smith, who is a Professor of Pharmacology in the School of Medical Sciences at Otago University.
Mr Eade’s evidence was that he began using cannabis as an analgesic in 1995. He began cultivating it for himself in 2001. He smoked about an ounce or an ounce and a half a day. If he was away from home for a long period of time he would put a “couple of tablespoons on his muesli in the morning”. He said this would give him 12-24 hours of pain relief. The stock on hand was said to be entirely for his own use. He denied any cannabis had been, or was, for sale.
Professor Smith is a distinguished pharmacologist. Apart from his teaching duties, he has published widely, and is of standing on recognised scientific bodies and evaluative committees. There was no issue that he was qualified as an expert witness on the potential therapeutic applications of cannabis in the management of pain. He is not a medical doctor.
An eight page trial brief was prepared by Professor Smith with three pages of annexed references. It was supplied to the Crown apparently just before the trial. The Crown had no objection to the first seven pages of the brief (and that evidence, going to the analgesic qualities of cannabis, was in fact led at the trial). The Crown did object to the final two paragraphs, which read as follows:
[1] On the basis of the above evidence, it is conceivable that the defendant was using cannabis for its analgesic effects. [2] His medical records indicate that the is suffering from a chronic pain condition involving the legs and hips, following two injuries in 1987 and 1989. [3] His Consultant Physician predicts that he is likely to require replacement of one or both hips in the near future. [4] The defendant has been prescribed piroxican (FELDENE) for his pain, but has experienced gastrointestinal side effects that are common with this medication. [5] Given the analgesic properties of cannabis, it is probable that he receives significant pain relief from using it.
[6] Because of the development of tolerance over time and the consequent need to use higher doses of cannabis to achieve the same analgesic effect, it is also conceivable that the defendant needs to use large amounts of cannabis in order to obtain the desired relief. [7] It is also conceivable that he maintains a large supply of cannabis in order to ensure that he has sufficient quantities of the drug to obtain ongoing pain relief. (Sentence numbers have been inserted for ease of reference).
The trial Judge was asked to deal with the issues arising on that objection on an application under s.344A of the Crimes Act 1961, immediately after the jury was empanelled, and before the Crown opened. He ruled that sentence (1) was inadmissible (as going to the ultimate issue). Sentences 2, 3 and 4 were ruled inadmissible as inappropriate hearsay. Sentences 5 and 6 were likewise, and consequentially, ruled inadmissible. Sentence 7 was ruled inadmissible as going directly to the ultimate issue. No issue is now taken with the ruling in respect of sentence 7.
No medical evidence as such was called for the defence. Mr Eade gave evidence that the last time he took prescription pain killers was in 1995 and that his GP “is now studying to be a surgeon in Australia”. Apparently the defence considered that it would not have been possible to “call all the doctors concerned”.
The Grounds of Appeal: Admissibility of Evidence
The general submission for the appellant is that “the trial Judge erred in ruling that an expert witness, Professor Paul Smith, could not mention that he had perused the accused’s medical files (of over 10 years duration) to relate them to the accused’s analgesic use of cannabis, and in particular to quantities consumed. Such reference is a recognised exception to the rule against hearsay. It would not have been possible to call all the doctors concerned”.
Mr Glover took each sentence in the part of the brief in question, in turn. For instance, as to sentence 1, he submitted that, read in the context of the whole brief, it “merely expresses the Professor’s view that cannabis could be effective in relieving [Mr Eade’s] particular type of pain”. The Crown says that sentence went further than that. Mr Horsley said, “in actual fact the proposed evidence to be given was not that cannabis could be effective in relieving the appellant’s pain but rather that it is conceivable that the defendant was using cannabis for the relief of pain.”
It is somewhat artificial to separate the sentences in the passage of the brief we are considering. The sentences in para 1 were interconnected. The Professor’s proposed evidence, when so read, was that he had had access to the defendant’s medical records; that Mr Eade suffered from conditions which generate chronic pain; that he had been prescribed regular pain relief in the past – and that, given the known quantities of cannabis, he probably gets “significant” pain relief from its use.
The reasons for the traditional reluctance of courts to allow expert opinion evidence going to the central issue(s) in a case still hold good: a jury might (even with appropriate directions) forgo independent analysis and bow too readily to “the expert view”. And secondly, more often than not, there is no need to expose the jury to that risk, for it is unnecessary to do so – the jury is quite capable of making its own connections and evaluations. That said, there is today no absolute rule against evidence from an expert witness which goes to the ultimate issue. But it must be necessary for the proper determination of issues before the jury (see R v Makoare [2001] 1 NZLR 318 (CA) and R v Parrott (2001) 150 CCC (3d) 449 (SCC)). Sometimes this may occur where it is artificial to separate out facts and opinions into water tight categories; or where what is to be said is a way of conveying relevant facts as perceived by the expert; or where the defence would be unduly hampered if the defence could not put the issue in a direct way.
In our view, in this case the Judge was correct to exclude the evidence in the first paragraph. First, Professor Smith is eminently qualified as a pre-clinical scientist and a pharmacist, but he is not a medical doctor. This was a back door way of getting the medical evidence before the jury, and in a way which would hinder proper cross examination. Secondly, this passage, when viewed as a whole, is commentary, on whether the defendant was in fact using cannabis for the purpose of pain relief, and, if so, how much. That was precisely what the jury had to decide.
The second paragraph is also “commentary”. The Professor had given evidence about the phenomenon of “drug tolerance” and the consequential acceleration of use by persons who resort to that drug. But the commentary was again conclusory, and gratuitous. Whether this had in fact happened in this case was something for the jury to assess in this instance against the scientific evidence which the Professor had provided them with.
In the result, we agree with Mr Horsley’s submission that this jury was well enabled to apply the scientific evidence given them by Professor Smith to the specific evidence of the accused in this case, in the traditional manner. We do not agree that, as Mr Glover submitted, the defence was here unduly hampered or prejudiced. The most that Professor Smith could ever have said was that Mr Eade’s consumption was consistent with the kind of cannabis usage which may have been required to produce an analgesic effect – but that was a submission which was, in any event, made to the jury.
Extent of Crown Evidence: Over-reaching and prejudicial; and want of appropriate directions
The appellant’s complaints under this ground of appeal were that the Crown led more evidence than was strictly needed, given the guilty plea on the cultivation charge. And secondly, that the Judge should have warned the jury that the evidence relating to the mode and the extent of the cultivation was not in itself evidence of possession for sale, and that the appellant’s plea of guilty to the charge of cultivation should not influence their thinking in relation to the charge which they had to determine.
Mr Horsley submitted that the evidence led was appropriate, and he said:
To suggest that a jury requires a warning that guilt of cultivation does not equal proof of sale is to assign a lack of intelligence to the jury that is quite unwarranted.
The jury was clearly directed as to the issues and it is unreasonable to think that in this case the plea of guilty could have influenced the jury’s thinking in relation to the charge which they had to determine.
The first and most fundamental obligation of a trial Judge is to ensure a fair trial. Although only one charge (of several) remains for consideration by a jury, it is possible that unfairness could result if something is not said as to the place of the charges on which an accused has been arraigned and pleaded guilty, but on which the jury does not have to reach a verdict. But it is impossible to specify in the abstract when that might be so. In the time honoured phrase, it all depends on the circumstances of the particular case.
Here, the Crown was entitled to put the case on a “whole case” basis. Because of the way the defence was run the diverse locations of the cannabis, and the character of it, were all relevant to a “no sale” defence. And, this was a single issue case for the jury: was all this cannabis for personal use? The Judge made it abundantly plain to this jury in his summing up that it was that question to which it had to direct its attention. A further direction was not required.
Conclusion
In the result, that portion of Professor Smith’s brief which was excluded by the trial Judge was properly excluded; and there was no misdirection in the summing up to the jury.
The appeal is accordingly dismissed.
Solicitors:
Glover Sewell, Christchurch for Appellant
Crown Law Office, Wellington
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