The Queen v Jason Douglas Wheatley
[2002] NZCA 183
•30 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA3/02 |
THE QUEEN
V
JASON DOUGLAS WHEATLEY
| Hearing: | 22 July 2002 |
| Coram: | Anderson J Williams J Paterson J |
| Appearances: | T Sutcliffe for Appellant H D Lawry for Crown |
| Judgment: | 30 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J |
Issues
On 12 December 2001 the appellant, Mr Wheatley, was convicted by a jury in the Hamilton District Court on one charge of cultivating cannabis plant and one count of possessing equipment - namely growing lights, extractor fans and a watering system - capable of being used for cultivating cannabis. In view of those verdicts, the jury was not asked to decide on an alternative count of permitting premises at 27 Havelock Road, Ngaruawahia to be used for the purpose of cannabis cultivation. This judgment deals with Mr Wheatley’s appeal against the two convictions on the grounds that the verdict should be set aside because they were unreasonable or cannot be supported having regard to the evidence (Crimes Act 1961 s 385(1)(a)).
On 20 December 2001 Mr Wheatley was sentenced to four years imprisonment on each of the counts on which he had been convicted. On 15 March 2002 he abandoned his appeal against sentence.
Facts
Mr Wheatley became the tenant of the property at 27 Havelock Road, Ngaruawahia in June 2000 at a rental of $105 per week. His tenancy remained in force until late December that year, some time after the police executed a search warrant on the premises on 17 December which led to the laying of the charges. The premises consisted of a small house on a large section. The landlord said that he was aware that there was also a bus on the section which belonged to Mr Wheatley. The landlord initially said that he last saw Mr Wheatley at the property in about October 2000 but later accepted that he may have been inaccurate in that estimate and last saw Mr Wheatley at the property in about August.
Mr Wheatley arranged for the electricity account for 27 Havelock Road to be connected in his name as from 13 July 2000. It remained in his name until 3 February 2001. It seems that after paying an account for $81.79 for the period up to 1 August 2000, Mr Wheatley’s automatic payments were dishonoured for the balance of the period though the electricity company took no step to discontinue supply.
When the police executed the search warrant they found a reasonably sophisticated cannabis-growing operation set up in the bus. The cavity of the bus had polythene sheeting taped to it, black on the outside and white on the inside for reflection. The equipment included fluorescent lights, fans, extractors and a watering system. There were 143 female cannabis plants estimated at eight to ten weeks old growing in polythene bags. Documents were found in the bus in Mr Wheatley’s name, though some years old. Fingerprinting found one print of Mr Wheatley’s left forefinger on the tape used to secure the sheeting to the bus. Water and electricity were piped to the bus through tubes and a flex which were buried in the surrounding soil and led to the house where the electric cord was plugged into the stove. Perhaps unusually, and a point relied on at trial, no timers were found attached to the electricity supply despite a police cannabis expert saying that timers are normally employed by cannabis growers to interrupt the electricity supply on a regular basis in order to maximise growth.
In a search of the house the police located isopropyl alcohol, an ingredient commonly used in the making of cannabis oil, in the toilet and some fertiliser underneath the laundry sink.
On 13 May 2001, the police executed a second search warrant, this time at 1146 Orini Road, Orini, the address at which Mr Wheatley was then living with his partner and family. On that occasion they located some potting mix, a picture of a cannabis plant, three empty isopropyl containers, some polythene and the bus which had been at 27 Havelock Road on 17 December. They also found two documents addressed to Mr Wheatley at 27 Havelock Road, Ngaruawahia dated 29 August 2000. ESR analysis suggested the polythene found in the bus on 17 December and that found at Orini Road on 13 May may have a common source.
The persons in occupation at 27 Havelock Road when the police executed the search warrant on 17 December were a Ms Brown and her partner, Mr Shepherd. Only Ms Brown gave evidence. She was clearly a reluctant witness, perhaps because as a result of the execution of the search warrant she was charged with possession of cannabis oil.
Ms Brown said that she and her partner were offered the sub-tenancy of the property by Mr Wheatley for $30 per week. Initially she said the sub-tenancy commenced about a month before execution of the search warrant but later accepted that on 16 January 2001 she made a statement to the police saying they took up occupancy at the end of August 2000 and remained there until immediately after the search warrant execution.
Ms Brown said that she had no involvement with the bus although “sometimes late at night I would hear things” from it. She and her partner never received a power bill, though they were never expecting to pay for electricity. She denied ever hearing water running from the house or fans running in the bus whilst she was around the property. She said she noticed the electric cord plugged into the stove and would occasionally unplug it to enable her to vacuum the house but would then reconnect it. She said she showed no curiosity as to the purpose of the plug and its connection because she was “not a little busy body and I don’t go out following cords”. She denied knowing anything about the cannabis cultivation.
Submissions
In carefully constructed submissions, Mr Sutcliffe – who was not counsel at trial – submitted that the evidence contained insufficient proof that Mr Wheatley participated in cannabis cultivation and particularly drew attention to the paucity of evidence other than what he submitted was the unreliable evidence of the landlord, as to Mr Wheatley’s presence at 27 Havelock Road during the period mid early to mid October 2000 when the cannabis was probably planted and the lack of any timing devices in relation to lighting and watering the crop. He suggested the method of cultivation employed required some person to turn the electricity on and off throughout the likely period of cultivation. He submitted the evidence of the presence of Ms Brown and her partner at the property during the relevant time implied they were responsible for cultivation, particularly given they were charged with offences against the Misuse of Drugs Act 1975 following execution of the search warrant. Those factors, even set alongside the evidence of the concessional rent, the fingerprint on the tape, the possible sighting of Mr Wheatley at the property in October 2000, the later position of the bus and the absence of any explanation by Mr Wheatley to the police may, he submitted, have given rise to a high degree of suspicion but did not justify the jury taking an inference of proof beyond reasonable doubt.
In relation to the count of possession of equipment, Mr Sutcliffe submitted there was no evidence that would support the view that Mr Wheatley had physical possession or control of the cannabis-growing equipment to the exclusion of others. Evidence that he may have touched the tape was not, Mr Sutcliffe submitted, sufficient evidence of his possession of the equipment mentioned in the indictment.
Overall, Mr Sutcliffe submitted that convictions on the two counts on which Mr Wheatley had been found guilty were unreasonable and were based on an insufficiency of evidence, though he conceded that they may perhaps have supported a conviction on the alternative count.
For the Crown, Mr Lawry drew attention to the concessional rent, the lack of any application at any time under the Crimes Act 1961 s 347 and the circumstantial evidence as to Mr Wheatley’s continuing rental payments, his continuing liability for electricity, the evidence as to his possible presence at the property in October, uncertainties as to the commencement date of the sub-tenancy, the documents found when the bus was first searched, the possible matching of the polythene, the presence of the bus at both properties together with items capable of being used for the growing of cannabis and the possibility that the absence of equipment commonly found in such operations implied that part of the cannabis growing operation was being conducted elsewhere than at 27 Havelock Road.
Discussion
With the possible exception of evidence of Mr Wheatley’s presence at the property in October, both parties accepted that all the evidence against Mr Wheatley in this case was circumstantial.
In those circumstances, the test remains as enunciated by this Court in R v Puttick (1985) 1 CRNZ 644, 647 where the following appears:
Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.
Since there is no distinction either in law or logic between facts established by direct evidence and those established by inference, so long as collateral or evidentiary facts need not be proved beyond reasonable doubt a direction that only "irresistible" inferences are permissible must constitute an unjustifiable restriction of the normal and proper use of inference. It must also tend to restrict the use by the jury of the combined knowledge and experience of its members, which is its greatest contribution to the trial process.
It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step.
The extent of directions on inferences, as on any topic, will vary according to the significance of that topic in the particular case.
and as appears in R v Hart [1986] 2 NZLR 408, 413:
The Crown's case depended largely on inferences to be drawn from circumstantial evidence. On the appeal counsel for the accused argued that such general observations as the Judge made in his summing up about a case so dependent were inadequate. It was said, for instance, that he should have made it clear that all the circumstantial evidence was equally available to both parties and that if it left the jury in reasonable doubt the accused should be acquitted. Among other authorities counsel cited Police v Pereira [1977] 1 NZLR 547 as suggesting that in New Zealand it is essential in such a case to give expressly what is sometimes called a Hodge direction (R v Hodge (1838) 2 Lew CC 227) , namely that before finding the prisoner guilty the jury must be satisfied not only that the circumstances are consistent with his having committed the act, but also that the facts are such as to be inconsistent with any other rational conclusion than that he was the guilty person.
This Court has recently discouraged elaborate general directions about inferences (R v Puttick (1985) 1 CRNZ 644) and we now reiterate that this is our approach. We think it much more important that the Judge should give the jury practical and fair assistance as to how particular parts of the evidence may help or tell against or even positively exclude the proof of a case beyond reasonable doubt than that he should deal with the subject of circumstantial evidence and inferences in abstract terms.
Since at least R v Hedge [1956] NZLR 511, … it has been established in New Zealand that an express Hodge direction, although perfectly proper – and conceivably even desirable – in certain circumstances, is not required as a matter of law.
(See also R v Maxwell (1988) 3 CRNZ 644, 647 and R v Laugalis (1993) 10 CRNZ 350, 358-9 and we observe in passing that part of the commentary by the learned authors of Robertson et al, Adams on Criminal Law Ch.2.1A.06(1) p2-12(a) may advocate an approach going beyond those authorities).
This Court does not have the learned District Court Judge’s summing-up but Mr Wheatley was represented in the District Court by experienced counsel and doubtless the appeal would have been based on additional grounds had counsel then been of the view that the Judge’s summing up on inferences was in error.
Having carefully considered counsel’s submissions, in our view, whilst there may have been room for suspicion that the involvement of Ms Brown and her partner was greater than that which she acknowledged, there was evidence before the jury from which it was open for it to conclude that Mr Wheatley was guilty of the two offences on which he was convicted. That material included his renting the property, his sub-letting it at a concessional rent without arrangements for the sub-tenants to meet the electricity account, his continuing liability for the electricity account through the relevant period, his possible sighting at the property at about the time the cannabis was planted, his ownership of the bus in which the sophisticated cannabis growing operation was housed, the fingerprint evidence, the documents connecting him to the bus and the premises found on execution of the search warrants and the discovery at his premises on the second search warrant execution of material usable in offences against the Misuse of Drugs Act 1975. Although the lack of some aspects commonly found in cannabis cultivation such as timers and the possible involvement of Ms Brown and her partner would have told against the Crown’s version of events, no doubt those were aspects stressed by counsel at trial.
Looking at the matter overall, we are not persuaded that there was insufficient evidence from which the jury could deduce that Mr Wheatley was involved in cultivating the cannabis plant found in the bus or that he possessed the equipment used in the cultivation in the sense of it being within his dominion and control. It follows that we are similarly unpersuaded that the verdict was either unreasonable or could not be supported having regard to the evidence.
Mr Wheatley’s appeal against conviction is accordingly dismissed.
Solicitors:
Till Henderson King, Hamilton, for Appellant
Crown Solicitor, Auckland
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