The Queen v Hoooker

[2006] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND

CA265/05

THE QUEEN

v

GARRY JOHN HOOKER

Hearing:20 June 2006

Court:William Young  P, Wild and Heath JJ

Counsel:Appellant in Person

K B F Hastie for Crown

Judgment:27 June 2006 

JUDGMENT OF THE COURT

THE APPEAL, WHICH WAS AGAINST CONVICTION, IS DISMISSED.

REASONS

(Given by Wild J)

Introduction and background

[1]       The appellant appeals against two convictions entered following his trial before a jury in the Palmerston North District Court on 15-16 June 2005.  Judge Dawson presided.

[2]       Having executed search warrants at 33 Morgan Crescent, a residential address in Levin, on 21 May, and again on 17 June, 2003, the Police found evidence that cannabis was being cultivated and cannabis oil produced at the address.

[3]       Because the appellant was acquitted on a third count arising from the 17 June search, it is necessary only to refer to what was found on the 21 May search.  In the laundry in the house an empty 20 litre drum of isopropyl alcohol was found.  In the kitchen there was a plastic bag of cannabis seeds, various utensils and a pot with cannabis oil resin on or in them, and a drink bottle filled with cannabis “cabbage”.  In a cupboard in the main bedroom there was a frying pan containing cannabis oil resin.  The Crown evidence was that various of these items were consistent with the production of cannabis oil.

[4]       Upon gaining entry to the shed at the end of the driveway, the Police found it had been divided into two.  Part of the shed was a growing room insulated with cardboard and polythene.  Ten healthy cannabis plants were under cultivation, ranging in height up to half a metre.  Amongst the equipment in the garage was a heat lamp, a transformer, a double gas hot plate and gas bottle, two large aluminium pots, an empty tin of isopropyl alcohol, some bags of potting mix and a box of fertiliser.

[5]       One of the spoons and the frying pan found in the house were subsequently analysed by the ESR, the analysis confirming that they contained residue of cannabis oil.  The “cabbage” in the drink bottle and the plants growing in the shed were also analysed, the analysis confirmed that they were cannabis.

[6]       The defence case was that all these items belonged to a man the appellant named as Wiremu.  The appellant claimed he had allowed Wiremu to use the garage, explaining that, in return, Wiremu had provided him with cannabis.  The appellant admitted that he was a cannabis user.

[7]       Although he initially claimed only to be an occasional visitor to 33 Morgan Crescent, the appellant subsequently admitted to the Police that he had lived there with his grandson.

[8]       The appellant put his points on appeal succinctly in two letters addressed to the Court and dated 6 March and 3 May 2006.  Appearing for himself, the appellant told us he had nothing to add to these letters.  We took the opportunity to clarify with him some of his points.

[9]       We deal in turn with each of the appellant’s four points.

Photographs

[10]     The appellant’s first point was that the Crown used in the trial photographs that were not taken at the scene, but at the Levin Police Station several months after the search.  He submitted that the jury were misled as to the actual “scene”. 

[11]     For the Crown, Ms Hastie accepted that photographing exhibits at a police station months after the search during which they were located, was a departure from normal and sound Police practice.  She pointed to the explanation for this given in evidence at trial, namely that the Police had overlooked taking a camera with them when they executed the search warrant on 21 May.  Ms Hastie pointed out that no objection was taken at trial by defence counsel to the production of the photographs. 

[12]     Quite apart from the lack of objection to production, the appellant’s point goes, not to the admissibility of the photographs, but to the weight to be attached to them.  When leading this evidence, Crown counsel had the Police detective tell the Court when and where the photographs were taken, bringing out the point that they were taken in the exhibit storeroom at the Levin Police Station on 4 September 2003, that is about four months after the 21 May 2003 search. 

[13]     Thus, the jury were squarely informed as to where and when the photographs were taken, and of the fact that they were not “scene” photographs.

[14]     There is nothing in this first point.

Documents

[15]     After the Judge had overruled an initial objection by defence counsel, the detective, by consent, gave evidence about documents the Police had found when searching the house at 33 Morgan Crescent.  She gave that evidence referring to notes she had made during the search. 

[16]     In particular, the detective gave evidence that she had found in the house a bank statement addressed to the appellant at 33 Morgan Crescent, Levin, and an electricity bill similarly addressed.

[17]     The appellant gave evidence.  In chief, he explained that the power bill was in his name because he had offered to pay the $150 bond for Ms Piripi, who he said rented the house.  Cross-examined about the bank statement, the appellant disputed the detective’s evidence about finding one of his bank statements in the house.  He deposed:

…  I don’t believe that’s true, that’s what I think, I think, I, I, I just don’t believe that he seen a bank statement there with 33 Morgan Crescent cos I never had, I never had my bank statements go there.  …  I just say that my bank statements did not go to 33 Morgan Crescent.

(Notes of evidence 70/31-71/6)

[18]     The appellant’s point is that if the Police were going to adduce evidence about those documents, then they should have seized them when searching the house and produced them as exhibits at his trial. 

[19]     The detective explained in her evidence that the Police had not done that because they considered that their search warrant did not encompass documentation unrelated to the cultivation or production of Class C or Class B controlled drugs (relevantly, cannabis and cannabis oil respectively).  Whilst documents such as a tick list or an invoice for isopropyl alcohol would have been covered by the warrant, a document such as an electricity bill was not.

[20]     Thus, the jury was aware that the relevant documents had not been seized, and had the Police explanation as to why they had not been seized.  Obviously, the jury were aware that those documents were not produced as exhibits at the trial.  The only evidence the jury had about the documents was that given by the detective, who referred to the notes she had made at the time.

[21]     The detective’s evidence was admissible.  It was for the jury to accept or reject it as reliable evidence about the documents in question, and in particular whether they included a statement and bill addressed to the appellant at 33 Morgan Crescent.

[22]     There is nothing in this point.

The isopropyl alcohol drum

[23]     The appellant did not advance this as a ground of appeal in his notice.  He added it in his 6 March letter, but did not refer to it in his 3 May letter.  His point was:

The crown used material that was not E.S.R. tested one being the isopropyl drums I say contained diesel.

[24]     The Crown evidence was that the Police located this drum in the laundry in the house during the 21 May search.  It was a 20 litre “tin”, labelled on the outside “isopropyl alcohol”.  It was empty.  It was seized, and subsequently photographed, but was not tested by the ESR to determine what was (or had been) in it.  It was not an exhibit at the trial.

[25]     The appellant’s evidence was that he had got this drum, and the other one located in the garage during the second search, from the Pikitu Marae, where isopropyl alcohol was used for cleaning the stainless steel.  He and his father both used to own diesel trucks and they used these two drums along with other containers, filling them up with diesel when Shell “used to drop diesel prices on weekends”.  Under cross-examination, the appellant agreed that his “diesel story” was all some years in the past, and seemed unable to explain why he would still be keeping a large (20 litre) drum in what he accepted was quite a small washhouse.

[26]     The opposing evidence about the drum was before the jury.  As with the evidence about the documents found during the search, it was for the jury to decide what to make of that evidence.

[27]     There is nothing in this point.

Discharge of juror

[28]     The appellant put this point in the following way in his 3 May letter:

Through out the trail the only time I looked at the jury members was every time they entered the court on one of those entrances one of the jurors a lady looked straight at me and gave me a nice friendly smile I instantly looked away thinking she cant be smiling at me a few seconds later I looked back and she smiled again at me.  I then had no doubt she was smiling at me.  At the end of the trail she was the juror who was released early I submit that this juror knew I was telling the truth and because of her and maybe others the jury could not make a decision, and as soon as she was released the rest made a decision.  The judge said in his summing up your decision must be unanimous that is by all twelve of you.

[29]     What occurred is deposed to by the Crown Prosecutor at the trial, in an affidavit he swore earlier this year.  The jury had retired shortly after 2 p.m. on 16 June.  They went to dinner at 6 p.m., returning at about 7.30 p.m.  A little after 8 p.m. the Judge called counsel into his Chambers to alert them to what he described as “a problem with a juror”.  The Judge explained to counsel that the Registrar had, at the request of the juror, attempted to contact the person who was to have picked up her children.  That person had told the Registrar he could not locate the children.  The Judge told counsel that he was concerned that, informed of this, the juror would not be able to continue performing her duty.  Counsel agreed to the Judge discharging the juror without further reference to counsel.

[30]     At 8.44 p.m. the Judge reconvened the Court, and formally advised that, after informing the juror of the position as to her children, he had discharged her.  The Judge then had heard submissions as to whether the trial should proceed with 11 jurors.  Defence counsel confirmed her opposition (foreshadowed to the Judge earlier) to that course. 

[31]     The Judge ordered that the trial was to proceed.  It appears he did not give reasons for that ruling.

[32]     The jury returned at 9.17 p.m. with their verdicts:  guilty on counts 1 and 2; not guilty on count 3.

[33]     It seems that the smiling of the discharged juror referred to by the appellant in his letter had taken place earlier in the trial.  The prosecutor deposed that at no stage during the jury’s deliberations or the discharge process were the appellant and the juror in Court at the same time.

[34]     It became clear to us from our questions to the appellant, that he was not submitting that the juror sought a discharge because she was being intimidated or overborne by the other jurors.  He accepted that the circumstances we have outlined were cause for genuine and urgent concern for the welfare of the juror’s children.  The appellant’s point really comes down to disappointment that a juror who he anticipated might be sympathetic to his defence was discharged.

[35]     Nor did the appellant submit that there were not proper grounds for a discharge.  It is unnecessary for us to decide whether the situation came within s 374(1) Crimes Act 1961, because we are satisfied it is squarely within s 374(3)(a).  The juror concerned obviously needed to be informed urgently that the person who was to pick up her children could not find them.  The transcript of this part of the trial records the Judge outlining to counsel the inquiries made by Court staff, at the request of the juror, in an effort to locate her children.  It then records the Judge telling counsel that, when those inquiries proved fruitless, the juror was advised.  The Judge is then recorded as informing counsel:

She (the juror) was even more distressed and I released her.  Now that happened about five minutes ago.  …

[36]     That simply bears out that, once informed that her children could not be located, the juror would not be able to continue performing her duties properly.

[37]     In addition to being satisfied that the Judge had jurisdiction to discharge the juror, we are satisfied that no miscarriage of justice resulted from the Judge’s decision to allow the remaining 11 jurors to continue with their deliberations.  The reasons for the discharge of the juror had nothing to do with the jury’s deliberations and the fairness of the trial.

[38]     Lastly, the Judge’s direction to the jury that they must be unanimous as to their verdicts meant that all jurors still serving on the jury must be unanimous.  In other words, all the remaining 11 jurors needed to agree on the verdicts.

[39]     This fourth and final point has no substance and also fails.

Result

[40]     None of the four grounds of appeal has succeeded.  The appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington