The Queen v Marc Patrick Johnson

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 310/01

THE QUEEN

MARC PATRICK JOHNSON

Hearing:	28 February 2002
Coram:	Anderson J Baragwanath J Potter J
Appearances:	D P H Jones for Appellant S J Gray for Crown
Judgment:	11 March 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

In July 2001 the appellant was convicted on his trial before a Judge and jury on one count of attempting to manufacture the Class B controlled drug methamphetamine contrary to s6 of the Misuse of Drugs Act 1975. Having been sentenced to three years imprisonment he now appeals against conviction and sentence.
On 30 March 2000 the Police executed a search warrant on premises at Te Atatu occupied by one Stanic. Upon searching a garden shed they discovered utensils and equipment plainly set up for the manufacture of methamphetamine. This was described by the Crown in the course of trial as “a clandestine methamphetamine laboratory”. Examination of the paraphernalia for fingerprints disclosed 18 fingerprints of the appellant located on 13 items. Another fingerprint was found on a piece of paper which the Crown characterised as “an inventory of chemical apparatus”.
Other fingerprints were found to be of those of one Whyman. He, along with the appellant and Stanic, were jointly tried. There was no other direct evidence of the appellant’s involvement but the Crown relied, amongst other things, on a written curriculum vitae which had been seized on 11 January 2000 in the course of a search of the appellant’s house in respect of other matters. The curriculum vitae showed that the appellant had a New Zealand Certificate of Science in Chemistry and a Bachelor of Science in Chemistry from the University of Hertfordshire. It also showed that he had been employed by organisations of national and international repute as an analytical chemist, laboratory technician, laboratory assistant and chemical manufacturer and laboratory assistant. He proclaimed key skills of an analytical organisational and standards nature.
The Crown opened to the jury that the appellant had the most experience with chemicals and chemistry processes and he was clearly what might be termed the “cook”.
The seizure of the appellant’s curriculum vitae in January 2000 occurred in the termination phase of a Police surveillance operation known as “Operation Mexico”. In the premises where the appellant lived at that time and where the curriculum vitae was found there was a computer which was found to have on its hard drive internet sourced data relating to the manufacture of methamphetamine. The appellant and several others were arrested on charges relating to the manufacture and supply of methamphetamine. When he appeared in Court on 12 January 2000, the appellant was granted bail notwithstanding that he was already on bail for an antecedent offence of producing methamphetamine. His trial in respect of Operation Mexico followed the trial relative to the present appeal. The appellant was again convicted. He was sentenced to 3½ years imprisonment.

The grounds of appeal against conviction

The primary submission on behalf of the appellant is that for various reasons there was a miscarriage of justice. First, he is said to have been deprived of the opportunity of making a properly informed decision whether to give evidence at trial in consequence of certain expressed intentions on the part of the Crown. Without objection from the Crown, leave was granted to the appellant to file in support of the appeal an affidavit from him and from his trial counsel. The appellant waived privilege.
Trial counsel deposed that on a pre-trial application the prosecutor informed her that if the appellant were to give evidence at trial and disavowed any knowledge of methamphetamine the Crown would be seeking to cross-examine him as to the methamphetamine material downloaded by the Police from the computer located on 11 January 2000. A similar indication was given in the course of trial before the appellant was required to make his election. Trial counsel had a number of discussions before and during the trial concerning the risks to the appellant should he give evidence. She obtained an indication from the trial Judge that he would not comment adversely should the appellant elect not to give evidence. After further discussing the matter with the appellant, trial counsel obtained written instructions from him that he did not wish to give evidence. Although trial counsel was of the opinion that the Judge would not permit cross-examination which would disclose the fact that the appellant faced other charges or that his premises were searched in relation to other charges, she was concerned at the possible prejudice to the appellant by virtue of the cross-examination that might be permitted.
On this appeal counsel submitted, in effect, that the appellant was constrained by the Crown’s indicated course of action so as to deprive him of a real choice on his election.
The next argument in support of the appeal is that for a number of reasons, taken in combination, the appellant was deprived of a fair trial. It was apparent from the evidence that the curriculum vitae had been obtained in the course of a search on 11 January 2000. The search which disclosed the methamphetamine laboratory took place in March and the appellant was charged in November 2000. Counsel submitted that the evidence of the January search and seizure of the curriculum vitae two months before the laboratory was discovered raised the prejudicial suspicion that in January the Police already had cause to suspect the appellant of criminal activity.
It is said further that the Crown inappropriately used the curriculum vitae to support its case, in particular by implying that the nature of the appellant’s qualifications were appropriate for manufacturing methamphetamine. Those qualifications were said to be in analytical chemistry, and the laboratory evidenced processes in organic chemistry.
Counsel also submitted that having regard to certain evidence about the discovery of fingerprints in the time that the appellant was charged the jury might have been left with the impression that he was charged before any fingerprint identification was conducted and that accordingly there might have been evidence against the appellant which was not before them for their consideration.
A further concern of the appellant relates to evidence given in chief by a Sergeant of Police who was in charge of the search in March. He was granted leave to refer to his notebook to assist his evidence in relation to his interviewing of one of the accused, Whyman, and of the appellant. He testified that he informed the appellant that he would be charged with manufacturing methamphetamine along with Stanic and Whyman, informed him of his rights pursuant to the Bill of Rights Act and cautioned him. He questioned him for a time but received nothing of any evidential value and then testified as follows:
I said, there is already an information laid in regard to this matter, it is that you manufactured meth along with Stanic and Whyman, do you understand. He said, yeah. At that stage arrangements were made for his transfer to the Auckland Central Police Station where he was charged on other matters.
Now you’ve spoken about the process of charging Stanic, Whyman and Johnson?…Yes.
You were involved in the decision about which charges to lay?…I was.
And as I understand it, initially, Mr Faulkner and Mr Whyman were charged with receiving?…They were, indeed, yes.
What happened to the charge against Mr Faulkner?…Following the full examination of the scene and the thorough fingerprinting of the vehicle recovered from the address as well as all the equipment from the laboratory and the suitcases in the garage there was no physical evidence linking Mr Faulkner to any of that equipment, just his mere presence at the address to which he indicated was as a visitor. I felt there was insufficient evidence to charge him or continue with the charge and subsequently the information relating to the receiving of the motor vehicle was withdrawn.
Counsel’s submission is that the reference by the Sergeant to “charged on other matters” was improper and highly prejudicial.
The third major ground of appeal is that the Judge misdirected the jury in summing up by referring to the appellant’s fingerprints being “found on some 19 items of equipment or exhibits located at 11 Orchid Place, and in particular the two pieces of paper on which there were handwritten details, a list of laboratory equipment”.
Counsel points out that there were 18 prints found on 13 items not 19 items; that one print was found on paper and in fact on only one piece of paper; and the appellant’s prints were found on a number of items used in the manufacturing process but were also found on a number of items that were not used in the manufacturing process.

Appellant’s submissions on appeal against sentence

It was submitted that the appellant should not have been sentenced to more than two years imprisonment because only a relatively small amount of methamphetamine could have been produced, having regard to the quantity of chemicals involved. Further, that one necessary chemical was not present and overall this was a small scale attempt. In view of these matters, the absence of any previous drug convictions at the time of sentencing and the fact that the maximum sentence for the offence is seven years imprisonment a sentence approaching half the maximum was too high.
Counsel also submitted that the Judge appears to have been influenced by extraneous matters such as the presence of a pistol on the appellant when he was arrested many months after the discovery of the laboratory. Counsel also criticised the Judge for certain comments referable to the then pending trial for the Operation Mexico offences. He said that the appellant had apparently become a repeat offender.

The Crown’s submissions on appeal

The Crown submitted that if the appellant had given evidence that his fingerprints were on the laboratory equipment for innocent reasons it would have been fairly open to the Crown to cross-examine him in respect of aspects of Operation Mexico to impeach that defence and the prosecutor at trial was accordingly doing no more than putting the defence on notice of a legitimate line of cross-examination. He had counsel advising him and made an informed decision as to his election with no resulting miscarriage of justice. There was no suggestion of error by defence counsel at trial let alone a radical error which would justify a new trial.
As to the question whether, in the light of the evidence of the date of seizure of the curriculum vitae and the date on which the appellant was charged, the Police Sergeant’s reference to “other charges” led to a miscarriage of justice, counsel for the Crown submitted that there was no real danger or reasonable suspicion that the appellant might have been prejudiced in all the circumstances of the case. The appellant was represented at trial by experienced counsel who raised no objection and made no application for the discharge of the jury. The matter did not seem significant enough to warrant any specific direction thereon by the Judge. The jury was generally directed that the verdicts must be based on evidence and not suspicion or speculation. The Judge reminded the jury that the only things known about the appellant were his fingerprints and his scientific knowledge. In the circumstances the material did not have the significance now sought to be attached to it.
The reference to the curriculum vitae by the prosecutor in closing, when read in context, was not inappropriate. The Crown points out that the admissibility of that evidence was tested and determined on a pre-trial ruling. The Crown introduced the document to show the appellant’s qualifications in chemistry generally. It was open to the appellant to cross-examine a scientific witness for the Crown as to the distinction between analytical and organic chemistry, but this step was not taken. The Crown submitted that it was fairly open to the jury to infer from the appellant’s qualifications that he had the ability to be the “cook”.
The Judge’s mistake as to the number of items on which fingerprints were found and his reference to two pieces of paper rather than one are dismissed by counsel for the respondent as insignificant.
The Crown submitted that the sentence imposed on the appellant was not clearly excessive. A starting point in sentencing in the range of two to two and-a-half years imprisonment was appropriate on the basis that if this had gone beyond an attempt to actual manufacture, a sentence of five years imprisonment would have been consistent with the approaches discussed by this Court in R v Wallace and Christie [1999] 3 NZLR 159. That could be reduced to half by reason of the attempt. Whilst not necessarily accepting the Crown view that the end product of manufacture might have had a value of $25,000 or more the Judge had a basis of calculations provided by a detective sergeant which rendered the figures not necessarily speculative. The offending was significantly aggravated by the fact of its occurring whilst the appellant was on bail, having been bailed on two successive occasions prior to the crime in question.

Reasons for judgment

The appellant’s first argument is entirely unconvincing. He received appropriate advice from experienced counsel, whose professional competence is not impugned, concerning his vulnerability to legitimate cross-examination. The metaphysical constraints on his freedom of choice, being such as might arise in any case where a witness might be prejudiced by candour are not such as to persuade us that there has been any miscarriage of justice.
As to the second main ground of appeal we would accept that evidence of seizing the curriculum vitae could have been given without reference to any date. On the other hand, we find it difficult to accept that the jury would take prejudicial inferences from the information about the date of the seizing of the document and the timing of the charging of the appellant. Again, no objection or indeed comment was made in that respect by counsel at trial. We are aware that she is a very experienced barrister, and counsel for the appellant eschewed any suggestion of professional incompetence on her part.
It is regrettable that the police sergeant, obviously reading from his notebook or closely referring to it, commented that the appellant “was charged on other matters”. One expects more care from an experienced officer and more diligence from all members of Police giving evidence particularly since such comments sometimes require the discharge of a jury, with attendant inconvenience and expense, in order to avoid a real risk of a miscarriage of justice.
But in this case the impact seemed to have been insufficient to warrant any comment by trial counsel or specific response by the Judge. A consideration of the comment in the context of the evidence in chief as a whole and particularly shortly before and shortly after the sergeant’s comments suggests it had little impact. In short, although the error should not have occurred, it does not justify a new trial in the present case.
We consider there was nothing inappropriate about the Crown’s reference to the curriculum vitae in closing. It is an over-simplification for the appellant to suggest that he was an analytical chemist and the Crown should not have equated that training with inorganic chemistry process. What the Crown did was to refer to the general nature of the appellant’s qualification, including his work experience, as can be seen from the following extract from counsel’s closing address:
I am going to start with Mr Johnson. The reason I start with Mr Johnson is because the Crown says to you that it was Mr Johnson who was doing the extracting of pseudo-ephedrine in the shed. He has the expertise. Have a look at Mr Johnson’s CV when you are in the Jury Room and you have probably had a look at it already. Key skills: analytical, titration in other classical methods, chroma photography. Qualifications: Bachelor of Science Chemistry, University of Hartfordshire, England, UK. Career history: Worked for Roche Products in the UK as an analytical chemist, he has worked for Smith Co & Beauchamp in the UK as a laboratory technician, he’s worked as a lab assistant and as a lab technician in New Zealand. Those are the sorts of skills you may well think that would be required for the sort of complex chemical process that you heard about. You heard evidence that products such as red phosphorous can actually be dangerous if you are just not aware of what is going in with it. You heard evidence about the way the police went into the shed with breathing apparatus because they did not know what was in there and about how they treated the sorts of chemicals that they came across. So you would need a fair degree of specialist knowledge to be able to achieve the manufacturing of methamphetamine.
In our view the Crown was fully entitled to put the matter in that way.
The complaint about the Judge’s direction concerning 19 utensils with fingerprints rather than 13 is inconsequential. We dismiss it as trivial.
Turing to the appeal against sentence we find ourselves unpersuaded that it was clearly excessive. The Judge approached the matter on the basis that it warranted two and-a-half years imprisonment with an extra six months added for the aggravating feature of offending whilst on bail. This was an attempt which had gone far beyond mere preparation and was approaching the level of a substantive manufacture. The first stage of extracting pseudo-ephedrine had been undertaken. Had the manufacturing process been completed a sentence of up to five years imprisonment, although stern, would not have been inconsistent with the indications given by this Court in R v Wallace and Christie. The two and-a-half year starting point has a reasonable comparability with cases such as R v Donnelly (CA 102/96, 22 August 1996) where a sentence of 22 months imprisonment was upheld in respect of one count of conspiring to manufacture methamphetamine to which the offender had pleaded guilty, and R v Masters (1995) 13 CRNZ 571, where a sentence of three years six months imprisonment was upheld in respect of a defended count of conspiracy to supply methamphetamine and conspiracy to supply cocaine. In the present case the aggravating feature of offending for a second time whilst on bail fully warranted at least the six months extra imposed by the Judge.
Counsel for the appellant expressed concern that the Judge may have been influenced by alleged irrelevancies. One of these was the charge of being unlawfully in possession of a pistol but we do not accept that the Judge was inappropriately influenced in that respect. Although the charge arose in time after the count for which he was being sentenced the commission by the appellant of yet another offence whilst on bail was a matter which the Judge was entitled to draw attention to.
Of more concern is the reference by the Judge to repeat offending in respect of drugs. He commented:
You are no doubt an intelligent and talented man and it is very disappointing, and indeed distressing, to the Court to find that, with your talents, your ability and your education, you have become what apparently seems, at this stage, to be a repeat offence. [sic].
Later in the sentencing notes the Judge again referred to the other, then as yet untried offences in this way:
Mr Johnson, let me say this to you, you, in forthcoming months, are facing two further trials. What the outcome of those trials will be, we do not know, but what saddens me is that you are a person of intellect and ability, and you have displayed a commitment in obtaining your qualifications. What I am saying to you is this, that when eventually you come out of prison, because it may be that the three years I am imposing upon you today is subsequently extended if you are convicted of other charges, you will have to learn to put behind you your involvement in narcotics. If you do not, Mr Johnson, let me assure you that the sentences the Courts impose upon you will be far longer, lengthier terms of imprisonment than you are currently facing. It is a matter for you, but let me say this to you, there is no future in being involved in the manufacture of drugs. All that will happen to you is that you will spend a lifetime in prison and you will know that all those individuals who consistently become involved in the narcotic scene, whether by way of manufacture, supply or importation, eventually end up by serving very, very lengthy terms of imprisonment. It would be sad to see a person of your talents and ability end up like that.

Counsel’s submission was that the references to the other charges were capable of conveying to the appellant and to others who might hear or read the sentencing remarks that the Judge was led to impose a sterner sentence than might otherwise have been the case because of the then outstanding charges of drug offending.
If that were so, this Court would be astute to correct any such impression, if necessary reinforcing the correction with some reduction in sentence which left no room for concern. As a general caution we note the care that must be taken to avoid ambiguity or misunderstandings of judicial pronouncements. In this case, however, the Judge’s remarks have plainly been actuated by a concern for descent into criminality by a man of intelligence, talent and education. The same theme is apparent from the pre-sentence report. The Judge made it clear that he was not influenced adversely to the appellant when having pointed out the talent, ability and education he said: “All I can do is assess the appropriate penalty on this charge.”
A similar humane concern is apparent throughout the second passage from the sentencing notes reproduced above. It is perfectly clear from the tenor of the Judge’s remarks and the express focus on the case in hand that the sentence has not been augmented by the factors which prompted the Judge’s observations.
In short, we are not persuaded that the sentence is clearly excessive or for any other reason should be revisited.
The appeals against conviction and sentence are dismissed.

Solicitors
Crown Solicitors, Auckland

[2002] NZCA 10

11 March 2002