The Queen v Jones

[2007] NZCA 187

IN THE COURT OF APPEAL OF NEW ZEALAND

CA325/06
[2007] NZCA 187

THE QUEEN

v

MATHEW TUHURA JONES

Hearing:26 February 2007

Court:Hammond, Chambers and Arnold JJ

Counsel:C J Tennet for Appellant

K B F Hastie for Crown

Judgment:9 May 2007     at 10.30 am

JUDGMENT OF THE COURT

A        An extension of time for appealing is granted. 

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Possession of methampethamine for supply

[1]       Mathew Jones, the appellant, was found guilty on two charges:

(a)Having in his possession a class A controlled drug, namely methamphetamine, for the purpose of supply; and

(b)Having in his possession two pipes for the purpose of consuming methamphetamine.

[2]       Williams J, the trial judge, subsequently sentenced Mr Jones to a total effective sentence of two and a half years’ imprisonment.

[3]       Mr Jones now appeals against his convictions.  His appeal was filed out of time.  An explanation for the delay has been given.  Ms Hastie, for the Crown, advised the Crown did not oppose Mr Jones being granted an extension of time in which to appeal.  We are satisfied that the delay has been adequately explained and accordingly an extension of time for appealing is granted. 

Issues on the appeal

[4]       Mr Tennet, who was not Mr Jones’s trial counsel, advanced no fewer than eight grounds of appeal.  Five of them relate to both counts.  The sixth relates to count 1 (possession of methamphetamine for the purpose of supply).  The final two relate only to count 2 (possession of the pipes). 

[5]       The first issue is whether certain evidence was wrongly admitted.  Under this head, Mr Tennet originally challenged the evidence of Ashleigh Meyn, Robert Moore, and Wayne Beattie.  After discussion with the bench, Mr Tennet dropped the challenge to the evidence of Mr Meyn and Detective Constable Moore and maintained the challenge only in part to the evidence of Detective Beattie. 

[6]       The second issue is whether the prosecutor’s final address to the jury gave rise to a miscarriage of justice.

[7]       The third issue is whether the judge misdirected on inferences.

[8]       The fourth issue is whether the judge misdirected on the burden of proof. 

[9]       The fifth issue is whether the summing up was defective in not containing what Mr Tennet called the standard tripartite direction. 

[10]     The sixth issue, which related only to count 1, was whether the judge misdirected on the question of what knowledge Mr Jones had to have of the contents of the container in which the drug was found. 

[11]     The seventh issue, which related only to count 2, was whether the summing up was defective in the instruction given on “purpose”. 

[12]     The final issue, which again arose only in respect of count 2, was whether the verdict should be set aside on the ground that it was unreasonable or could not be supported having regard to the evidence. 

[13]     We shall deal with the issues in that order. 

Was some of Detective Beattie’s evidence inadmissible?

[14]     Detective Beattie gave evidence that he had joined the police in 1989.  Since 1995, he had been heavily involved in police work relating to drug offending.  Part of his evidence could legitimately be described as “expert evidence”.  He gave opinion evidence as to common practices of drug dealers.  Mr Tennet identified three passages of evidence to which he took objection:

(a)The first passage concerned Detective Beattie’s experience of how drug dealers regularly change their mobile phone cards or SIM cards (and thus their telephone numbers) in order to disguise their identity and prevent the police from intercepting their telephone calls and their text messages.

(b)The second passage concerned Detective Beattie’s explanation as to how methamphetamine users use “meth pipes” for smoking methamphetamine.  He also expressed the view that the two pipes which were the focus of the second count were “typical” of meth pipes he had seen being used for the purpose of smoking methamphetamine.

(c)The third passage related to the significance of a screwdriver blade found in Mr Jones’s car.  Detective Beattie explained that methamphetamine users frequently use screwdriver blades as a device for dipping into a methamphetamine bag and then taking a small number of crystals out.  They then place those crystals into glass pipes prior to smoking.

[15]     Mr Dreifuss, Mr Jones’s trial counsel, had not objected to this evidence. 

[16]     Mr Tennet did not dispute that evidence of this sort would generally be admissible from a suitably qualified police officer.  His objection to the evidence lay solely in the fact that it was given by Detective Beattie, who was the officer in charge of the prosecution.  Mr Tennet submitted that the Crown should have called another police officer to give this evidence.  The narrow point for our consideration is, therefore, whether Detective Beattie’s status as officer in charge rendered him unavailable as an expert witness. 

[17]     Mr Tennet had advanced exactly the same argument in R v Williams CA63/05 9 December 2005.  The argument was rejected by this court (at [117]-[120]), as Mr Tennet acknowledged.  But he argued that Williams had been overtaken by a later decision of this court, R v Carter (2005) 22 CRNZ 476. 

[18]     We disagree.  Carter is not inconsistent with Williams.  Carter does not refer to the question of whether the officer in charge can give expert evidence.  Carter does set out principles applicable to expert evidence: at [47]. There is no reason why an officer in charge cannot comply with those principles.

[19]     Detective Beattie’s expert evidence was admissible.  The reasons why a witness of fact can also be an expert witness are set out in Williams and do not need to be repeated here.  Defence counsel at trial did not object to Detective Beattie’s giving the expert evidence he did.  He was right not to object, as there was and is nothing to suggest that the detective was not qualified to express the opinions he did. 

[20]     The first ground of appeal fails. 

Did the prosecutor’s final address to the jury give rise to a miscarriage of justice?

[21]     Mr Tennet made two complaints about the final address of the prosecutor, Mr Walker:

(a)Mr Walker suggested that the jury could make use of a particular piece of evidence in a way which was impermissible;

(b)Mr Walker made “a substantive attack on [Mr Jones’s] right to silence”. 

[22]     We shall consider both complaints in turn.

Improper use of evidence

[23]     Detective Constable Moore gave evidence that he had searched Mr Jones’s house.  He found in the bottom of the master bedroom wardrobe a bag.  That bag included both computer-printed documentation and handwritten documentation describing how to produce methamphetamine.  There is no dispute now that Detective Constable Moore’s evidence on that topic was admissible. 

[24]     Mr Walker said in his final address:

The next point, and this relates to something found at the house, and that was the documentation you heard that was found in the master bedroom at the house.  The documentation that the ESR scientist told you related to recipes, if you like, or instructions on manufacturing methamphetamine.  Now it is true, of course, and His Honour mentioned it to you at the time this evidence was given, the accused is not charged with manufacturing methamphetamine.  That is not the point of this evidence.  But you will recall that he told Constable Para, the police officer whose evidence was read, he told Constable Para that he had moved to Gisborne to get away from the methamphetamine scene in Hastings.  Now you might think that the documentation then found at the house in Gisborne shows his interest in methamphetamine was more than just as a user and that his interest in methamphetamine was continuing in Gisborne.  In other words, that is simply a further piece of evidence that you can take into account in assessing his claim that he was not aware of any methamphetamine being in that cardboard box. 

[25]     Mr Tennet’s real concern is with respect to the words italicised.  The reference to the “cardboard box” was a reference to the cardboard box which had earlier been found in the back of Mr Jones’s car.  It was in that box that the methamphetamine and glass pipes had been found.  One of Mr Jones’s defences was that he did not know it was methamphetamine in the box.  He had told Sergeant Gregory Lexmond at the time his car was searched that he thought it was BZP (benzylpiperazine), a party drug, which he sold from a shop he ran in Napier.  One of the principal issues at trial was whether he knew that it was a controlled drug in the box. 

[26]     The relevance of the documentation found in the bag was, therefore, that it tended to support an inference that Mr Jones had a continuing interest in methamphetamine, which in turn made it more likely his explanation relating to what was found in the cardboard box was false. 

[27]     We see nothing wrong with that passage in Mr Walker’s address.  Perhaps it was unnecessary to say that the documentation indicated an interest in methamphetamine beyond that of a mere user.  But that is a trifling point.  He had earlier made it clear that Mr Jones was not charged with manufacturing methamphetamine, a point which had also been emphasised by the judge.  He then correctly identified what the point of the evidence was. 

[28]     There is nothing in this first complaint.  

Attack on the right to silence?

[29]     The other passage to which Mr Tennet objected occurred during Mr Walker’s explanation to the jury as to how circumstantial evidence worked.  He had explained that there were a number of “different pieces of evidence” which, he said, “when you put them together lead you to a certain inevitable conclusion”.  He then started going through the different pieces of circumstantial evidence on which the Crown relied.  When he got to the third piece, he said this:

Now, the next point is this.  The defence position appears to be, although it hasn’t been expressly stated, but it appears to be that this black canister was not his and therefore belonged to someone else.  The accused hasn’t said as much, but you will recall that he said to Detective Beattie on the Wednesday, remember he was stopped on the Sunday, the 20th, on Wednesday the 23rd Detective Beattie spoke to him again and the accused said something at that point about having lent his car just before he came up to Gisborne, having lent his car to a couple of friends, and they took it off to a funeral or something.  Now if he was suggesting by that comment that, look someone else could have put the black canister in the box, well, then think about that.

[30]     Mr Walker then went on to explain why such a suggestion made no sense.  We should explain that the methamphetamine had been found in the black canister, which was one of the items in the cardboard box. 

[31]     Mr Tennet accepted that Mr Walker’s comments did not amount to a breach of s 366 of the Crimes Act 1961, which prohibits a prosecutor from commenting on the fact that an accused has not given evidence.  But, he said, the comments did amount to a breach of s 23(4) of the New Zealand Bill of Rights Act 1990.  That subsection reads:

Everyone who is –

(a)Arrested; or

(b)Detained under any enactment –

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right. 

[32]     We do not accept that submission.  Mr Walker was in no way challenging Mr Jones’s right to silence.  Mr Walker did not know for certain what line Mr Dreifuss would take in his final address.  One possibility was that he would emphasise the possibility that Mr Jones might have believed the box contained only a party drug, the line Mr Jones had apparently taken to Sergeant Lexmond on the day of the car search.  Another possibility, however, was that Mr Dreifuss would submit there was no proof that the black canister was Mr Jones’s and that it was reasonably possible that it belonged to the friends to whom Mr Jones had said he had lent the car.  Mr Walker no doubt thought it on the cards that Mr Dreifuss might submit to the jury something along the following lines: “You heard the accused told Detective Beattie about how he had lent the car to friends.  How can you be sure that this canister and its contents were not the friends’?”  All Mr Walker was doing in the passage now under challenge was providing a rebuttal to that suggestion, should it be run by defence counsel in his final address.  Part of that rebuttal was to emphasise to the jury that Mr Jones, in the explanations he had given to the police, had not expressly said the black canister was not his or belonged to someone else.  Mr Walker was fully entitled to draw that point to the jury’s attention. 

[33]     In our view, there was nothing improper in what Mr Walker said in that regard.  This ground of appeal must also fail. 

Did the judge misdirect on inferences?

[34]     The judge, in the course of his summing up, gave certain standard directions concerning inferences and circumstantial evidence. 

[35]     After the jury retired to consider their verdicts, the judge, in accordance with normal practice, asked counsel if they had “any additions, deletions, or amendments”.  Mr Walker had none.  Mr Dreifuss then did raise an issue as to whether the judge had correctly summed up on inferences.  A discussion then took place between Mr Dreifuss and the judge.  The judge did not accept Mr Dreifuss’s view of the law.  Mr Dreifuss said he wanted an opportunity to “look for the authorities”.  The judge allowed him that opportunity, although indicated he had better do his research “fairly quickly, given that the jury is already in retirement”.  The judge then adjourned until, as he put it, “if and when Mr Dreifuss wants me to address [the jury] further”.  So far as the record shows, Mr Dreifuss did not come back and ask for further directions to be given. 

[36]     Mr Tennet, in his written submissions, said on this topic:

It is submitted that by repetition of the Crown position – namely that there were too many coincidences – the overall effect on the jury would be that the defence really had to prove the case. 

It is further submitted that the learned Judge did not spell out to the jury that where there were reasonable alternatives they really could not go any further and should not speculate or guess.  With respect, he invited them to go back and look at other issues (nominated by the Crown) whenever they reached such a dead end. 

[37]     We found that difficult to understand and Mr Tennet’s oral explanation provided little more clarity.  We have looked carefully at all the judge said.  He said nothing to suggest that “the defence really had to prove the case”.  He specifically told the jury that they must not guess and must not speculate.  He did not suggest to them anything to the effect that, whenever they “reached…a dead end”, they should “go back and look at other issues (nominated by the Crown)”. 

[38]     With respect, this was an impossibly loose submission, which was completely without merit. 

Did the judge misdirect on the burden of proof?

[39]     Mr Tennet submitted that the judge “undermined the defence in his directions on burden of proof at [8] and [9]” of the summing up.  He submitted that what the judge said “fell below the test” set out at [49] of R v Wanhalla CA321/05 24 August 2006.  Paragraph [49] sets out a non-mandatory standard form explanation of the concept of proof beyond reasonable doubt.  The point should be made immediately that Williams J’s summing up predated this court’s decision in Wanhalla.

[40]     We have looked at what the judge said at [8] and [9] of the summing up.  It was entirely standard.  It was not, of course, exactly in terms of the Wanhalla direction: how could it have been?  But it nonetheless contained all the essential features to which reference was made in Wanhalla.

[41]     This too was a submission completely without merit. 

Was the summing up defective in not containing a standard tripartite direction?

[42]     Mr Tennet’s next complaint about the summing up was that it did not include the standard tripartite direction.  This is a reference to the three possible effects of an accused giving evidence.  In the bench book current at the time of Williams J’s summing up, the standard direction was given in these terms:

You could conclude [the accused’s evidence] was truthful and reliable and an answer to the Crown case.  If you were to accept the accused’s evidence that at all times he honestly believed that […] then that would be the answer. 

But such evidence can have another effect.  Although you may not accept it is the total truth, it may leave you with a reasonable doubt as to just what the true position was.  In that case the Crown will have failed to prove its case to the required standard.

The third possibility is that you may find the accused’s evidence unreliable and incredible and consequently reject it as having any probative value.  If that is your view, then you should not from that automatically conclude that the accused is guilty of this charge.  In that case you would set completely aside the evidence of the accused and go back to the rest of the available evidence in the case and decide on the basis of that whether guilt has been established.  The fact that an accused has given evidence which is unacceptable to you does not prove that the accused is guilty of the offence charged. 

[43]     It is true that Williams J did not give this so-called tripartite direction. But, as Ms Hastie submitted, there was no need for him to do so: Mr Jones did not give evidence. 

[44]     It is true that the defence did call one witness, but her evidence was peripheral to the issues in the case.  The Crown’s cross-examination of her was brief.  By no stretch of the imagination could her evidence have provided an answer to the Crown case.  Accordingly, the standard tripartite direction would have been quite inappropriate.

[45]     Perhaps a modified direction could have been given, but we do not consider it was necessary.  Indeed, it may not even have been desirable.

[46]     This ground of appeal fails. 

Did the judge misdirect on what inferences were available to the jury as to Mr Jones’s knowledge of the contents of the container in which the drug was found?

[47]     The next complaint related solely to count 1. 

[48]     The judge gave the jury a detailed handout on the topic of possession for supply.  One part of that handout read as follows:

If the item is proved to have been in a container and the accused was in legal possession of the container, he is presumed to know the nature of the contents of the container unless there is some evidence to the contrary.  That may be of assistance to you in this case given that the main items on which the Crown relies were contained in the cardboard box. 

[49]     This comment was made in the context of a discussion of “the second element of possession which the prosecution must prove”, which was, the judge said, “that the accused knew he had possession of the drug, that is to say he knew it was in his control.  You must know you have a thing in your control to have possession of it.  You cannot exercise control over something if you do not know you have it.” 

[50]     The judge, after reading out that passage from the handout, said to the jury:

The evidence to the contrary, Mr Dreifuss says to you, is Mr Jones’s repeated assertion to the police: “Everything in the car is BZP, you won’t find anything else.”  But there is a presumption there that you are entitled to take into account. 

[51]     On this topic, Mr Tennet submitted the judge was wrong.  He said that the law was to be found in Police v Emirali [1976] 1 NZLR 286, and it was “to the effect that physical custody of the container in which drugs are situated is only prima facie evidence of concurrent knowledge of the character of the contents”. Mr Tennet complained that Williams J had “overstated the burden of proof”. He added:

With respect, the language was stronger than it should be.  This was not a statutory presumption.  …  It is a rule of common sense as much as law and … that it can be easily displaced by any sort of evidence.

[52]     We agree there is no “statutory presumption” that a person in legal possession of a container is presumed to know the nature of the contents of the container, but the judge did not say it was “a statutory presumption”.  The law is correctly stated in Mathias Misuse of Drugs (1988) at [123]:

When the defendant is in possession of a package, in that he knows of its existence in his physical custody, there is a prima facie inference that he is in possession of its contents: see R v Warner [1969] 2 AC 256. If, though unaware of the contents, he did not open the package at the first opportunity to ascertain what they were, it could be inferred that he was accepting possession of the contents whatever they were, unless he had no right to open the package.

[53] That is all the judge meant by the phraseology he adopted in his handout, quoted above at [48]. We accept it is preferable to explain this concept in terms of an available inference rather than presumption. Of course, any inference or presumption can be rebutted by evidence to the contrary (if accepted). But that is precisely what the judge said in the passage quoted above at [50]. Again, we accept the direction would have been better if the last sentence there quoted had been omitted. In the overall context of the summing up, however, we think the judge made it clear that the presumption or inference as to knowledge of the contents could be displaced by evidence to the contrary, which evidence he laid out for the jury’s consideration.

[54]     Mr Jones’s defence was that he knew the cardboard box contained “substances”, but those substances were, he said, BZP.  The jury, if they considered that explanation reasonably plausible, would have had to acquit Mr Jones on the basis that the Crown had not proved beyond reasonable doubt that Mr Jones knew a controlled drug was in the cardboard box.  The jury, taking into account all the evidence, obviously rejected Mr Jones’s out of court statement to the effect that the only substance in the cardboard box he knew about was BZP. 

[55]     Overall, we do not think the summing up was legally defective, although we accept it would have been preferable to have explained the concept of knowledge of contents in terms of inferences rather than presumptions.

Was the summing up defective in the instruction given on “purpose”?

[56]     This ground of appeal related only to count 2. 

[57]     One of the matters the Crown had to prove under count 2 was that Mr Jones had the pipes in his possession for the purpose of consuming methamphetamine.

[58]     Mr Tennet’s complaint was that the judge had failed to explain “purpose” adequately.  He submitted further:

The learned Judge really need to say more about purpose than he did at [40]. That direction was, with respect, adequate for the charge of possession for supply but failed to point out that previous use was not the issue – it was whether inferences could be drawn that the appellant intended to use the pipes in the future.

[59]     Mr Tennet’s submission is, with respect, quite wrong.  The jury would have got to this particular issue only if they were satisfied that Mr Jones did have possession of the glass pipes.  If he had possession of them, what was his purpose?  Previous use of the pipes for smoking methamphetamine would suffice.  It did not matter whether the possessor had already used the pipes for smoking methamphetamine or whether that was simply his future intention.  Either way, that would be his “purpose” in having the pipes. 

[60]     We are quite satisfied that the direction on purpose was both correct and adequate. 

Should the verdict on count 2 be set aside on the ground that it was unreasonable or could not be supported having regard to the evidence?

[61]     Mr Tennet accepts there was evidence from which the jury could reasonably have found Mr Jones guilty of possession of methamphetamine for supply.  That means he accepts there was evidence from which the jury could conclude that Mr Jones was in possession of the cardboard box in his car and that he knew what was in it.  The jury must have rejected the defence submission that Mr Jones thought the box contained only party pills. 

[62] The glass pipes were also in that box. It appears not to have been seriously disputed at trial that the pipes were Mr Jones’s. The judge summarised the defence case on both counts at [49]-[58] of his summing up. There is no complaint as to the fairness or accuracy of the summary given. From that summary, it appears that the defence on count 2 was that there was “a reasonable doubt” as to whether the pipes had been used for smoking methamphetamine. Mr Dreifuss apparently suggested that they might have been used “for the consumption of cannabis”: at [58].

[63]     The jury obviously rejected that possibility.  It was clearly open to them to do so.  There was clear evidence that Mr Jones was a methamphetamine user.  There was also the evidence from Detective Beattie as to these being pipes suitable for smoking methamphetamine.  It was not put to Detective Beattie that the pipes could have been used for smoking cannabis.  Mr Dreifuss established from his cross‑examination of Detective Beattie that the police had never had the pipes scientifically analysed, but Mr Dreifuss did not risk taking the matter further.  Although Williams J left to the jury the possibility that the pipes could have been used for cannabis, that seems to have an act of charity towards the defence as, so far as we can see, there was no evidence to support the suggestion. 

[64]     Mr Tennet’s points under this ground of appeal really came down to two.  First, there was “no admitted ownership of the pipes” (his emphasis).  Nor did there need to be.  What mattered was possession, not ownership.  And clearly there was evidence from which the jury could reasonably conclude that he had possession of everything within the cardboard box. 

[65]     Secondly, Mr Jones had made no admissions about having used the pipes in the past or that he intended to use them in the future.  That is so, but it is of course not definitive.  He had admitted to being a methamphetamine user and Detective Beattie said that the pipes in Mr Jones’s box would be suitable for the purpose of methamphetamine consumption.

[66]     This ground of appeal cannot be sustained. 

Conclusion

[67]     All grounds of appeal fail.  The trial judge made no errors.  There was adequate evidence to support both convictions.

[68]     We cannot leave this appeal without commenting on its presentation by Mr Jones’s counsel.  Nearly all the points raised had so little merit that a moment’s reflection by responsible counsel would have led to the conclusion that running them was a waste of time.  The length of these reasons, necessitated by the number of points taken, should not disguise this fact.

Solicitors:
Crown Law Office, Wellington