The Queen v Konnerth

[2006] NZCA 134

IN THE COURT OF APPEAL OF NEW ZEALAND

CA149/06

THE QUEEN

v

ANTONY JAMES KONNERTH

Hearing:12 June 2006

Court:Robertson, Gendall and Venning JJ

Counsel:D A Ewen for Appellant

M D Downs for Crown

Judgment:20 June 2006 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Gendall J)

[1]       This is an appeal against conviction in the District Court at Wellington on 17 February 2006 following a jury trial on one count of possession of cannabis for the purpose of sale.  The appellant contends that there was:

(a)a misdirection by the Judge as to the operation of the presumption in s 6 Misuse of Drugs Act 1975;  and

(b)that there was misconduct by the Crown prosecutor in the making of closing submissions to the jury because he:

(i)incorrectly made submissions which had no evidential foundation;  and

(ii)infringed s 366(1) Crimes Act 1961 by commenting on the failure of the accused to “give or call evidence”.

[2]       Section 366(1) provides:

Where a person charged with an offence refrains from giving evidence as a witness, no person other than the person charged or his counsel or the Judge shall comment on that fact.

The first ground

[3]       It was accepted by Mr Ewen that the direction given was in conformity with the decision of this Court in R v Hansen (2005) 22 CRNZ 83 (CA).  An appeal against that decision has been heard in Hansen v R SC58/2005 but no judgment delivered.  Counsel agreed that it was appropriate that we should dismiss this ground of appeal in accordance with the law as it stands.  If the decision of this Court is subsequently demonstrated to have been in error, there are avenues which will be available to Mr Konnerth.

Background

[4]       The appellant lived in a house in suburban Wellington which was owned by his family but for which he was responsible for mortgage outgoings.  He had a female flatmate who lived there with her children and paid rent to him.  On 15 July 2004 the police executed a search warrant at the appellant’s home.  They there found, hidden behind insulation in a wall in a ground floor storage room, a chiller bag containing a plastic supermarket bag in which were six bags of cannabis plant material weighing in total about 153 grams.  Each of the six bags weighed approximately 28 grams.  The appellant’s bedroom was downstairs adjacent to the storage room in which the cannabis was found.  Located in his bedroom was a set of electronic scales. 

[5]       Upon arrival of the police, the appellant went down the stairs to the lower part of the premises.  It was contended he did this in order to try to hide his tracks and that the downstairs area of the house was an area, which was under his control being “his domain in his own house”.  The appellant had a dog which he said he was taking to the downstairs area to restrain it whilst the police were there.  When asked to explain the cannabis he said it was not his and that he did not know anything about it.  There was a closed-circuit television installed at the property although no evidence was given that it had been checked to see whether it was operating or not. 

[6]       The Crown had to prove beyond reasonable doubt that the appellant had possession of the cannabis plant and if that was established then the statutory onus shifted to the appellant to satisfy the jury that he had the possession of such cannabis exclusively for a purpose other than sale.

[7]       The appellant did not give or call evidence.

[8]       In his closing address the prosecutor made the following remarks:

[5]       You haven’t heard from the accused in this trial.  He doesn’t have to give evidence in this trial.  However, there’s no issue, in this trial, that the plant material was found at the accused’s address;  it was his home where the cannabis was found.  The logical conclusion, as I’ll explain in more detail, is that the cannabis must have been the accused’s…..He went down to the room when the police came.  He went down to the storage room.  Now, the logical conclusion is that he took the dog down…..So the police would not go down to the room to look around…..Because he had something to hide.  It’s logical to conclude that he was trying to lock the dog away with the cannabis so the police would not go down there.

[7]       Now, let’s look at a second reason why you can be sure, beyond reasonable doubt, that the cannabis down in the storage room was the accused’s.  The fact is, his bedroom was down there.  The accused took the constable down and showed him his bedroom.  The downstairs area of the house was his.  His things were down there, not the flatmates.  There was only one usable bedroom downstairs;  the other rooms, the constable has told you, were uninhabitable, couldn’t be lived in.  It was the accused’s area of control.  The downstairs area was his domain in his own house.

[9]       The prosecutor then remarked in relation to the appellant’s flatmate:

[8]       …You haven’t heard from her.  It’s not a good argument to say that it was her.  She stayed in the living room the whole time;  she didn’t go downstairs to try and cover up her tracks.  The accused did.  The logical inference is that she was not responsible for the area downstairs;  she had nothing to hide…..Because it was not her cannabis.

Later, the prosecutor said, when dealing with evidence that the appellant had said he had been away from the property for about four weeks:

[9]       …You’ve heard no evidence of anyone else being down there in the interim, and you can’t consider that possibility.  You’re here to decide on the evidence that you have heard.

Appellant’s submissions

[10]     Mr Ewen, on behalf of the appellant, submitted that as the Crown was making the submission that the cannabis was not that of the flatmate, it was required to call her to give such evidence;  or at least, to exclude as a reasonable possibility, that she was the sole possessor of the drugs.  He submitted that the Crown’s reference to the defence not calling the flatmate as a witness as well as the failure of the appellant to give evidence was fatal and led to a miscarriage of justice.  We observe that the prosecutor did not use the term “failure to give evidence” but nevertheless there was comment on the jury not having heard from the appellant.  Mr Ewen said, correctly, there was no onus on the appellant to prove that the cannabis was not his, or that it belonged to someone else.  He said that on the evidence there was a reasonable possibility that the possessor of the cannabis was some person other than the appellant.  He said there was a particular need for the Judge to draw the jury’s attention to the “potential deficiency in the Crown’s case” namely, that it had not excluded as a reasonable possibility that the sole possessor of the drugs was someone else. 

[11]     Mr Ewen further submitted that the Crown sought to rely upon inferences which were not based upon the evidence, and accordingly had adopted “unfair tactics”.  His proposition was that when direct evidence was available, in this case from the appellant’s tenant, it was wrong for the Crown to assert that the downstairs area was under the exclusive control of the appellant because such a submission was not supported by direct evidence. 

[12]     Finally, Mr Ewen argued that the breach of s 366 was serious and the cases established that the normal consequence of setting aside the jury’s verdict should follow.  He relied upon the well-known authorities of R v McCarthy [1992] 2 NZLR 550 (CA) and R v Ngatai [1999] 1 NZLR 446 (CA).

[13]     Although Mr Ewen contended that the section was breached by any comment on a failure to adduce defence evidence, whether from the appellant giving evidence or calling other witnesses, that is strictly not the case.  Whilst Mr Ewen relied upon R v Smiler CA2/05 14 June 2005 as authority for the proposition that reference to not calling other witnesses breached the section, in fact s 366(1) specifically restricts the prohibition to comment about an accused not giving evidence.  We do not see Smiler (as above) as saying otherwise.  Comment in a closing address by a prosecutor about a witness not being called by the defence may amount to improper conduct by a Crown prosecutor requiring firm action by the trial Judge.  But it does not fall within the specific prohibition of s 366.

[14]     R v Trounson [1991] 3 NZLR 690 (CA) and R v E CA242/03 9 October 2003 make it clear that if there is adequate and careful dealing with counsel transgression by the Judge in summing up to the jury, then in the particular circumstances of the case, an Appellate Court may conclude that no risk of a miscarriage of justice arises.  Mr Ewen accepted that, but contended the direction given by the Judge in this case was inadequate.

Discussion

[15]     We have reviewed the transcripts of the evidence and the prosecutor’s submissions, as well as submissions of defence counsel.  We are satisfied there were no basis for the complaint that the prosecutor inaccurately or incorrectly made submissions based upon the facts for which there was no evidential foundation.  The Crown’s submission was that the jury could draw the inference that the cannabis was in the possession of the appellant by reason of it being in the storage room adjacent to his bedroom, in the downstairs area of a house over which he had control, and that his actions (as compared to those of his flatmate) when the search warrant was executed, supported an inference that he knew what was there and he had something to hide.  As well there were submissions about the camera surveillance at the house over which the appellant had control, the inference being that he installed that camera, which provided more security than would be expected in normal circumstances.  The location of the electronic scales in his bedroom was said to support the inference that they were used by him for the purpose of weighing the 28 grams of cannabis found in each bag.  There is no substance in the argument that the prosecutor somehow misled the jury in making his submissions relating to the inferences which could be available from all the evidence.

[16]     The Crown had no obligation to call the appellant’s flatmate in order to enable the submission to be made that there was no evidence to suggest that the cannabis was hers.

[17]     The more substantial point relates to the infraction of s 366.  The Crown accepts that any breach of s 366 is a serious matter and there was such a breach.  Is this one of those situations where the breach is cured and ameliorated by judicial direction, and does not occasion a miscarriage of justice?

[18]     At trial defence counsel vigorously challenged and criticised the prosecutor for his comments.  More importantly, the trial judge on a number of occasions was at pains to emphasise to the jury that the accused did not need to give evidence.  In relation to the question of possession he said that there was no onus on the accused to prove he was not in possession, and on at least five occasions stressed the point.  For example, he said at [8]:

I said earlier there is no requirement for an accused person to give evidence, and that should be emphasised.  Where, as here, the accused has chosen not to give evidence, it means that the only account you have of his side of things is what he said to the police, and he said, ‘It is not mine.  I don’t know anything about it’.  But I should make it perfectly plain that the fact that he did not give evidence proves nothing at all on the issue of whether he had possession of the cannabis or not….The accused does not have to disprove anything.

Later, when dealing with the question of rebutting the presumption, once possession had been proved, the Judge said at [9]:

He does not have to give evidence in order to rebut the presumption.  If you found possession proved beyond reasonable doubt, it would be quite wrong for you to say that because the accused has not given evidence, he therefore had possession for the purpose of sale.

[19]     Prosecutors are rightly criticised if they contravene s 366 and in many cases such breaches are so serious to require the setting aside of an adverse verdict.  But in this case the breach was adequately corrected and remedied by the clear and firm directions of the trial judge.  Viewing the content of submissions of both Crown and defence counsel as well as the careful summing-up, we are satisfied that there is no risk that a miscarriage of justice was occasioned by the breach of s 366.  Further, there was no requirement for the Judge to draw the jury’s attention to any deficiency in the Crown case explicitly as this had been very forcefully and thoroughly covered by defence counsel in his address.  We are left with no doubt that the jury fully understood the onus rested on the Crown, and never shifted.

Conclusion

[20]     We conclude by noting that there was no complaint or query made by experienced trial counsel about the Judge’s summing up at the time.  That simply suggests that trial counsel harboured no concerns.  It is pertinent to state that which Richardson J (as he then was) said in R v Tennant [1989] 2 NZLR 271, 277 (CA):

We were advised at the Bar that some defence counsel have taken the view that it is not part of their responsibilities to draw the Judge’s attention to any perceived and obvious deficiencies in the directions on the law given to the jury arising from apparent oversight on the Judge’s part.  That is not a proper position for counsel to take.  They are officers of the Court and have a duty to the Court, which in the public interest transcends their other responsibilities, to apprise the Judge of any apparent deficiency in the Judge’s directions as to the law.  As Viscount Simon, Lord Chancellor observed in Stirland v DPP [1944] AC 315, 318:

It is not a proper use of counsel’s discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal.

Result

[21]     All the grounds of appeal advanced have failed and it follows that the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington