The Queen v Edwin Christopher Brown
[2002] NZCA 157
•3 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA45/02 |
THE QUEEN
V
EDWIN CHRISTOPHER BROWN
| Hearing: | 19 June 2002 |
| Coram: | Anderson J Williams J Paterson J |
| Appearances: | A G Speed for the Appellant S J Gray for the Crown |
| Judgment: | 3 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PATERSON J |
Mr Brown was present at a confrontation between two groups of people in New Lynn. A policeman, called to the confrontation, noticed that Mr Brown had a knife partially concealed in the left sleeve of a leather jacket. As a result of this incident, Mr Brown was arrested and taken to a police station where he was searched. 20 morphine sulphate tablets were found in a container in his possession. Ten of the tablets were grey, containing 100 mgs of morphine and ten were orange, containing 16 mgs of morphine, making a total of 1.6 grams of morphine.
Mr Brown was charged with two offences. First, without lawful authority or reasonable excuse, he had with him in a public place an offensive weapon, namely, a bayonet. Second, he had in his possession for the purposes of supply a Class B controlled drug, namely, morphine. On 1 October 2001, Mr Brown was convicted on the first count but the jury was unable to agree on the second count. In a second trial, in December 2001, Mr Brown was convicted on the second count. The District Court Judge, who presided at the second trial, sentenced Mr Brown to cumulative sentences of three months imprisonment for possessing an offensive weapon, and 21 months imprisonment for possessing for supply the Class B controlled drug. Mr Brown now appeals against both his conviction on the drug offence, and the cumulative sentences.
Issues
The appeal against conviction is based on an allegation that the summing up of the Judge was, in its totality, manifestly unfair. As such it is said there was a miscarriage of justice. The particular grounds of unfairness relied upon are:
(a)Adverse and unnecessary comments by the Judge which showed an unfair bias against Mr Brown;
(b)The failure to adequately repair a misdirection on a presumption given in the Judge’s opening remarks;
(c)The failure to adequately summarise the defence case;
(d)By inferentially inviting the jury to speculate;
(e)By failing to give a lies direction in the summing up.
The issues which arise in the appeal against sentence are:
(a)The correctness of cumulating the two sentences;
(b) The refusal to give leave to apply for home detention.
The facts
At neither trial were the basic facts contested. A constable was called to a confrontation between a group of males in New Lynn. He saw what he thought was a knife in Mr Brown’s hand with the blade concealed up the sleeve of his leather jacket. The constable asked Mr Brown to drop the knife, which fell to the ground, and was revealed as a metal bayonet just over 69 cms long. It was designed to be used not only as a bayonet but as a sword.
The constable asked Mr Brown a series of questions which he recorded in his notebook. Mr Brown said the bayonet was not really for protection, but more for a threatening appearance. He was arrested for possession of an offensive weapon.
The police discovered the pill bottle containing the 20 morphine sulphate tablets when Mr Brown was searched at the police station. The officer’s notebook records the following exchange between the officer and Mr Brown:
Q Whose are those tablets?
A:Mine, I suffer from Downs Syndrome, my Doctor prescribed them to me.
Q. What are they?
A. Tablets for my depression.
Q. Who is your doctor?
A. He’s in Onehunga. They’re Misties.
[Signed, E Brown]
The total weight of the morphine in the tablets was 1.6 gms, below the statutory presumptive level of 5 grams. In evidence, a police sergeant said the total street value of the tablets was $2400.
The contested issue on the drug charge was whether Mr Brown had the tablets for the purposes of supply. The tablets had been found on his person, they contained the Class B drug morphine, and Mr Brown was aware that they were morphine sulphate tablets as demonstrated by his statement “They are Misties.”
The police, to establish purpose, relied upon the number and value of the tablets; that there were sufficient to last a heavy heroin user 20-30 days; the tablets were readily saleable on the illicit market; and that Mr Brown was carrying them in a public place. There was evidence that “misties” are sought by heroin users, who process the tablets into heroin by means of a relatively simple procedure. There is a demand on the illicit market for these tablets. Most heroin users buy only one or two tablets at a time because of the expense.
The only explanation given by Mr Brown for possessing the tablets were that they were prescribed for him because he suffered from Downs Syndrome, and they were for depression.
The alleged unfairness
The police case against Mr Brown was a strong one. There was sufficient evidence for the jury to convict him on a charge of having the tablets in his possession for the purposes of supply. The issue is whether the statements and alleged omissions of the Judge, considered individually or cumulatively, amounted to manifest unfairness causing a possible miscarriage of justice.
The Judge in his opening remarks made erroneous statements relating to a presumption. This was not a case where a presumption applied, yet the Judge went into some detail referring to the presumption which applies in relevant drug cases. He noted that if the Crown proved beyond reasonable doubt that the accused had more than the statutory presumptive amount:
they have done all they have to do and the ball shifts into the Defence court to upset that presumption, if they can, but we do not place on the Defence a burden of proof beyond reasonable doubt. The law is that, if the Defence can satisfy you, it is more probable than not that you are in an ‘own use’ situation, then the charge has not been proved.
Mr Speed raised this misdirection with His Honour in the absence of the jury. Crown counsel agreed the reference to the presumption was incorrect. His Honour immediately gave the jury a further direction. That direction was recorded as follows:
You remember I talked to you about cases of this sort. There is a legal presumption which can make a jury’s task a lot easier. I was waiting for the Defence to pick up the ball but they would like me to tell you now rather than keep it as a surprise for later on.
I gather what is alleged here is the finding of a significant number of pills, that is significant from the Crown’s point of view. From the Defence point of view, you will get something different put to you. Counsel tell me they agree that it is not up to the presumptive amount, so what that means is that there is no presumption in favour of the Crown going to trouble you here. Looked at another way, the Crown has to rely on other evidence apart from the presumption, and the Defence will no doubt be crowing to you later in the case there is not the presumptive amount.
There is substance in the submissions that the Judge should have frankly acknowledged to the jury that he had made a mistake in his opening address, and that the reference to “the Defence will no doubt be crowing to you later …” was unfairly disparaging of Defence counsel for pointing out the error. However, the direction to the jury at that stage did state that there was no presumption in favour of the Crown.
The Judge revisited this point in summing up when he said:
I explained that presumption situation to you because we never know who has been on juries and who has not. There is a fair bit of common sense out in the community as to that.
But you will understand that this is not a case where there is proof of the possession of a presumptive amount of drugs and therefore do not get into any concern about that. If anything, that issue is something that, depending on the view you take of it, assists the defence in the sense that the quantity of drugs here is less than that which Parliament has fixed as a presumptive amount.
Mr Speed, for Mr Brown, submitted that these comments did not clearly alert the jury to the mistaken direction in the opening remarks. While we agree there were unnecessary and irrelevant comments in this explanation, we are of the view that the Judge clearly stated, both in the correction to his opening and when summing up, that the presumption did not apply, and noted later that the absence of the presumption may assist the defence. The Judge did, in a circumlocutory way, rectify his mistake.
There were several comments in His Honour’s summing up which were allegedly unnecessarily prejudicial towards Mr Brown. These included:
(a) But you will understand that just as some thieves steal little things and some thieves steal big things, so some people involved in the drug trade deal in big quantities and some of them deal in small quantities. But there is no presumption here.
(b) Every now and then we get a case of someone who knows perfectly well they have got an illicit drug but they get it wrong what they have got and somebody takes an overdose they did not expect to have. That is not this sort of case.
(c) You may, and it is entirely a matter for you, think it of some relevance that this is not a long statement in which the word “misties” appears somewhere in the body of the text, but in fact it is immediately above his signature. But that is entirely a matter for you.
(d) There was one comment that learned defence counsel made to you, and I suspect it was just a slip of the tongue, which does not correctly express the law. It is not a defence to a charge of this sort that the accused may have intended to use some of the drug for himself. If he is proved to have had any of it for the purpose of supply then that is enough and the Crown do not have to show how much was for his use and how much he might pass onto others. As a matter of the practical common sense experience of the Courts it is common that people in the drug scene both use and deal. They do not necessarily go around with packets written on them “this is mine and that is what I am going to sell in the pub.” It is sufficient if you are sure …
The comment about some people involved in the drug trade dealing in big quantities and some in small quantities was an unfortunate one. It was submitted it was unnecessarily prejudicial towards Mr Brown and amounted to a further submission, not on the facts, but of a speculative nature which may have influenced the jury to characterise Mr Brown as a “drug dealer”, even though one dealing in small quantities. In our view, the statement should not be taken out of context in the summing up as a whole. The Judge in summing up stated, among other things, that the onus of proof of each element to the standard of beyond reasonable doubt rested on the Crown; if the jury were to take from what the Judge said a view that he might have about the facts they should ignore that unless it accorded with their own views; while the jury could draw inferences it should not speculate or guess; there was no presumption which the defence was required to rebut; no inference should be drawn from the fact that Mr Brown had not given evidence; and then effectively the last substantive paragraph of the summing up made it clear that the issue was Mr Brown’s purpose in having possession of the tablets. The concluding sentence of this paragraph was:
The Crown, in effect, invites you to the view that this was a man with a pocketful of gold. The defence say that there is no evidence that he knew it was gold.
When considered against the orthodox directions in the summing up, we are of the view that the reference to the quantities sold by those people in the drug trade would not lead to a miscarriage of justice.
The submission in respect of the comment on someone taking an overdose was that it was a prejudicial and inappropriate statement, even though it was followed by “That is not this sort of case.” While we accept the statement was not appropriate, we are not of the view that it was likely to lead to a miscarriage of justice. There was the necessary balance in the summing up.
The objection to the statement referring to the word “misties” appearing immediately above Mr Brown’s signature was that the Judge should have balanced that comment by referring to a prior inconsistent statement by the witness, and that it may have been appropriate to give a warning in respect of the prior inconsistencies. We do not consider this is a strong point. The reference to “misties” came from Mr Brown in a statement which he signed. There was evidence upon which the Crown relied and we see the Judge’s comments as unobjectionable.
The objection to the comment on counsel’s “slip of the tongue” was that this statement gave the wrong impression on the defence case. It was never part of the defence case that only some of the drugs were for Mr Brown’s personal use as there was available evidence that they were all available for his personal use. This available evidence was Mr Brown’s answers noted in the officer’s notebook that he suffered from Downs Syndrome, they were prescribed by his doctor, and they were for depression. That was a manifestly facetious remark and there could be no realistic prospect that the jury might think it were the truth. The Crown’s case that the purpose was for sale rested in part on the number and value of the tablets, and the fact that Mr Brown was carrying them around in a public place. We agree that it would have been preferable not to have included the reference to persons in the drug scene going round with packets written on them “this is mine and that is what I am going to sell in the pub”, but in the overall context of the evidence in this case, and the other statements in the summing up, we are of the view that this statement was not unfair to the extent that it was likely to lead to a miscarriage of justice.
The allegations that the Judge failed to adequately summarise the defence case, and invited the jury to speculate, are not in our view made out. The first allegation is in part based on statement (d) in paragraph 17. However, the Judge did put the defence case, namely, the absence of evidence on how Mr Brown came by the tablets and what he intended to do with them. Secondly, we do not construe any of the statements in the summing up as inferentially asking the jury to speculate. To the contrary, he directed the jury that “it is not part of your job to speculate or guess.”
The final criticism of the summing up was that the Judge did not give a lies direction. This issue was raised with the Judge after the jury retired and he refused to give such a direction. In our view, he was correct. The basis of the submission that a direction should have been given was that the jury may have concluded that Mr Brown’s answer to the officer when he gave his reasons for having the tablets may have been taken by the jury to be a lie, and the jury may have moved from that conclusion to one of guilt.
It is not mandatory that a Judge give a lies direction in all cases where lies have arguably been told. There are many cases where an accused’s statement is obviously not believed by the jury but where no lies direction is given. Normally such a direction is only necessary when the Crown relies on the issue of lies and it is plain the jury may regard them as figuring in the evidence: see R v Walker [2001] 2 NZLR 289, para 14. Lies did not feature in the Crown’s case. It sought to establish purpose by the number and value of the tablets, their ready saleability and the circumstances in which they were located. Although remarking on the facetiousness of the appellant’s reference to Downs Syndrome, the Crown did not rely upon it in support of the Crown case. Nor did it seek to call rebuttal evidence on the issue. This is not a case which, in our view, required the direction to be given.
Some of the remarks made by the Judge could be characterised as irrelevant, gratuitous and expressed, unnecessarily, in colourful language. A Court must be astute to avoid language which could lead to a perception of injustice. However, in this case we are not persuaded that the Judge’s remarks either individually or collectively warrant a re-trial on the grounds of miscarriage of justice.
Sentence appeal
In our view, a sentence of two years imprisonment for the drug offence is not manifestly excessive. It is line with recent cases: see R v Lee (CA303/89, 4 December 1998) where, on a Solicitor General’s appeal, a two year term was imposed for possession for supply of 25 morphine sulphate tablets having a value of between $2000 and $2500. While the aggravating features in Lee were greater, the Court indicated that a sentence of three years imprisonment would have been appropriate in that case. When the totality principle is considered, 24 months is not manifestly excessive in this case.
If the Judge was incorrect in cumulating the two sentences, then the result is still not excessive under the totality principle. However, the two offences were arguably distinct and unrelated in this case, and we see no error in principle in imposing cumulative sentences.
The Judge was not prepared to grant leave to apply for home detention because that would bring Mr Brown back into contact with the things that got him into trouble. On his own explanation, he had both the drugs and bayonet at home before he set off on his expedition. We agree with the Judge’s assessment. In our view, he did not err in exercising his discretion against granting leave.
Result
For the reasons given, the appeals against conviction and sentence are both dismissed.
Solicitors
Crown Solicitor, Auckland
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