The Queen v Moore

[2009] NZCA 78

IN THE COURT OF APPEAL OF NEW ZEALAND

CA311/2008
[2009] NZCA 78

THE QUEEN

v

SHAUN MICHAEL MOORE

Hearing:19 February 2009

Court:Ellen France, Harrison and Cooper JJ

Counsel:C B Wilkinson-Smith for Appellant

N P Chisnall for Crown

Judgment:16 March 2009 at 11.30 am 

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       Shaun Moore was found guilty after trial in the High Court at Auckland on one charge of manufacturing methamphetamine and three lesser related charges.  He filed an appeal against his convictions and sentence of five years and nine months imprisonment.  His counsel, Mr Christopher Wilkinson-Smith, did not pursue the appeal against sentence.

[2]       Mr Moore appeals against his conviction on four grounds: the first two fall into the category of error or misconduct by trial counsel; the other two allege misdirections by the trial Judge.

Background

[3]       The Crown case that a person or persons had recently manufactured methamphetamine by using a mobile or clandestine laboratory found in a garage at the subject property was not really in dispute.  What was in issue was whether Mr Moore and his co-accused, Mr Jade Bates, had participated in the manufacturing process. 

[4]       The relevant evidence was that at 10.47 pm on 17 July 2006 Samuel Burrett called police to a semi-rural property at Hobsonville in West Auckland.  Mr Burrett was then aged 16 years and lived at the address with his father, Mr Peter Blakey, mother, Ms Darine Burrett, and a sibling.

[5]       Mr Burrett had arrived home from rugby practice at school between 5.30 pm and 6 pm.  He went into the garage where he saw his mother with five others.  Two were introduced as ‘Shaun’ and ‘Jade’.  He saw a methamphetamine pipe in the garage and coiled plastic piping sitting on a table near the sink together with a portable oven with a large pot.  Mr Burrett said that the garage ‘had a very harsh smell to it’ which struck him as ‘a bit odd’.  The smell permeated the interior and was still noticeable when he was standing outside on the deck. 

[6]       Mr Burrett then went for a ride on his motorcycle.  The garage door was shut when he returned, which was unusual.  So he left his bike leaning against a tree.  He saw Shaun and Jade come and go from the garage on various occasions during the evening.  His mother returned to the house and cooked dinner. 

[7]       Mr Burrett later ‘clicked on to what they were doing’ in the garage.  He ‘knew they were cooking’.  He confronted his mother about the activity which she and the others were carrying out; he was angry about her involvement and distressed that it would break up his parents’ relationship.  His father arrived home shortly afterwards. 

[8]       Mr Burrett rang the police.  He pretended to be a neighbour complaining about a disturbance between Mrs Burrett and her son.  Mr Burrett’s younger brother overheard the telephone call.  He ran to the garage, apparently to alert the occupants. 

[9]       Two police officers from the Waitakere station at Henderson arrived within 20 minutes.  Ms Burrett walked out of the garage to meet them, closing the door behind her.  The officers noted a camera mounted on the garage as part of a surveillance system and heard two males speaking quietly to each other and moving about in the garage.  They noticed a strong chemical smell from that source and saw water flowing through hoses running under the garage door.  The Crown case was that the occupants were disposing of incriminating evidence. 

[10]     On entry the two constables found what Mr Wilkinson-Smith concedes was a clandestine methamphetamine laboratory.  Mr Bates was lying on the couch, appearing to sleep.  Mr Moore was found crouching behind two mattresses ‘as if he was hiding’.  He did not surrender to police custody until threatened with forceful measures.  He gave a false name. 

[11]     When exercising their powers of search of Mr Moore the police found two small point bags usually associated with the packaging and distribution of methamphetamine.  One contained white crystal which the officers assumed was methamphetamine (some 155 milligrams or less).  Mr Moore’s fingerprint was also located on a water distiller found inside a sports bag.  Unchallenged evidence by a Crown scientist was that the distiller was used to extract pseudoephedrine from other materials during distillation. 

[12]     When questioned by a police officer Mr Moore advised that he had driven one of the vehicles found in the driveway, a borrowed white Mitsubishi, to the property. 

[13]     Neither of the accused gave evidence at trial or called witnesses in their defence. 

Appeal

(1)      Counsel error

[14]     The first ground of appeal raised by Mr Wilkinson-Smith was error by Mr Moore’s trial counsel, Mr Andrew Speed, in failing to call an available witness to establish that Mr Moore did not arrive at the Hobsonville address until about 8.30 pm on 17 July.  Mr Wilkinson-Smith says that Mr Speed refused to accede to Mr Moore’s wish to call his mother-in-law, Mrs Lillian Hamilton, who would say that Mr Moore was at her home in Mt Wellington until 7.45 pm on 17 July.  On this basis he could not have reached Hobsonville at least until 8.15 pm to 8.30 pm.  Mrs Hamilton is a 54 year old woman with no previous convictions. 

[15]     This evidence was said to support a contention that Mr Moore was at the address for a maximum period of two-and-a-half hours before the police arrived, compounding the Crown’s difficulties in proving Mr Moore’s participation in manufacturing in this relatively brief timeframe.

[16]     While Mr Wilkinson-Smith acknowledges that Mr Moore was aware of the existence of the clandestine methamphetamine laboratory, his defence was that he had no association with this activity and no methamphetamine was successfully manufactured while he was there.  Mr Wilkinson-Smith refers to evidence of other people attempting to manufacture methamphetamine at the property on both 16 and 17 July. 

[17]     Without Mrs Hamilton’s evidence, Mr Wilkinson-Smith says, the jury was left with little to contradict Mr Burrett’s evidence that Mr Moore was at the address by 5.30 pm and may have arrived earlier; and that the jury’s verdict on this count might well have been different, and cannot now be regarded as safe.  But that submission is factually incorrect.  Mr Burrett’s evidence-in-chief was that he met the man introduced as Shaun at about 5.30 pm or 6 pm.  However, he was unable to identify that man at trial as Mr Moore.  Furthermore, he volunteered in evidence-in-chief that the white Mitsubishi ‘arrived later on that night’; that is, after he met ‘Shaun’. 

[18]     Mr Speed’s succinct and effective cross-examination of Mr Burrett on this point bears repetition:

Q.During the course of this evening was your mother going from the house into the garage and back again?

A.Yes.

Q.You mentioned a white car turning up later?

A.Yes.

Q.Was that about 8.30 or so?

A.Around 8.30, yeah.

Q.You mentioned being introduced to someone you knew by the name of Shaun, was that sort of about that time do you think?

A.It was around the time where I got my motorbike out of the garage.

Q.It might’ve been a bit later than that though?

A.I’m not too sure – when I got my motorbike out I know I got introduced to someone and I’m pretty sure it was Shaun and might’ve been later though, 8.30 or so?

A.It could’ve been at that time as well.

[Emphasis added]

[19]     Thus the Crown’s primary witness had accepted that the white car arrived at the property around 8.30 pm.  As Mr Speed observed in his affidavit filed in Court, the only possible inference to be drawn by the jury was that Mr Moore arrived at the same time.  Mr Moore’s defence would not have been improved by calling his mother-in-law to confirm Mr Burrett’s admission.  Instead, as Mr Speed observed in his affidavit, he would have run the risk of creating an adverse impression with the jury by calling somebody other than Mr Moore to give evidence which was plainly within his knowledge.  It is also relevant to record that Mrs Hamilton told Mr Speed during the trial that she thought Mr Moore had left her address between 7 and 7.30 pm, not 7.45 pm as she now asserts.

[20]     We are not satisfied that Mr Speed erred in advising Mr Moore not to call Mrs Hamilton; to the contrary, we are satisfied that his advice was reasonable in the circumstances and has not given rise to any miscarriage of justice.

[21]     In oral argument Mr Wilkinson-Smith sought support for this ground of appeal by reliance on directions made by the trial Judge, Gendall J, when summing-up to the jury. The Judge referred to the timing of Mr Moore’s arrival on three occasions. The first two references were to the inconsistency between Mr Speed’s submission that Mr Moore had not arrived until 8.30 pm and Mr Burrett’s account of meeting a man called Shaun at about 5.30 pm. In the third the Judge specified Mr Bates’ evidence (it should be Mr Blakey’s) that he first saw Mr Moore’s car at 8.30 pm: at [86].

[22]     Two separate concepts come into play here.  One is whether or not trial counsel should have made a decision to call evidence from Mrs Hamilton at the end of the Crown case.  The other is the way the trial Judge dealt with the relevant evidence in his summing-up.  Mr Wilkinson-Smith does not assert that Gendall J’s directions were in error sufficient to justify a discrete ground of appeal.  So, even if Mrs Hamilton had given evidence consistent with Mr Moore’s actual arrival at 8.30 pm, it would have still been open to the Judge to refer the jury, as he did, to Mr Burrett’s contrasting account of meeting a man called Shaun at about 5.30 pm to 6 pm.  Mrs Hamilton’s evidence would not have answered this risk.

[23]     In any event we doubt that the factual issue of the timing of Mr Moore’s arrival was particularly relevant to his defence.  Evidence of Mr Moore’s arrival at the property at about 8.30 pm would have reduced but not eliminated the window of opportunity for Mr Moore to participate in the manufacturing process.  An ESR scientist, Mr Wayne Gatenby, gave evidence that an experienced operator may be able to complete the process within two or three hours, compared with an inexperienced cook who may take four to six hours, if the pseudoephedrine extraction was carried out beforehand. 

[24]     It was the Crown case, of course, that the police officers’ arrival interrupted the manufacturing activity being carried out by Messrs Moore and Bates.  The time of Mr Moore’s arrival, whether it was 5.30 pm or 8.30 pm, was irrelevant to the Crown’s incriminating evidence of, first, the discovery of Mr Moore’s fingerprint on the water distiller and, second, the circumstantial effect of activity inside the garage at the time of the officers’ arrival, the discovery of all the components and materials necessary to manufacture methamphetamine, the presence of a strong chemical smell consistent with manufacturing methamphetamine, and Mr Moore’s attempt to avoid discovery.

[25]     This ground of appeal fails.

(2)Counsel misconduct

[26]     Mr Moore’s second ground of appeal was that his junior counsel, Mr David Hoskin, was guilty of misconduct.  The argument was developed by Mr Wilkinson-Smith in written submissions but not in oral argument.  Thus we are able to deal with it briefly.

[27]     This ground was based upon an assertion by Mr Moore that in discussions with Mr Speed about whether or not Mr Moore should give evidence Mr Hoskin observed that, if Mr Moore went into the witness box, Mr Bates would do likewise and incriminate Mr Moore.  Mr Moore said he was influenced by this advice in deciding not to give evidence.  Mr Moore said in an affidavit in this Court:

On the last day of trial … Jade Bates told me that Mr Hoskin was representing him in another trial.  He told me that he had seen Mr Hoskin a week earlier and Mr Hoskin told Jade Bates that he would sit in on the trial to make sure everything was okay.  I was very uncomfortable when I heard this because I felt that Mr Hoskin had a conflict of interest.  I do not think Jade Bates would have wanted me to give evidence because Jade Bates had talked to me about what had happened at the address over the previous two days before I got there.

[28]     Significantly Mr Moore, who signed an express waiver of privilege relating to Mr Speed on 30 January 2009, did not sign a similar waiver for Mr Hoskin.  Mr Hoskin’s status is unclear.  Mr Moore’s affidavit describes him as his ‘original counsel’.  In his affidavit Mr Speed said that Mr Hoskin assisted him.  The evidential transcript nominates Mr Speed alone as Mr Moore’s counsel.  We shall proceed on the assumption that a professional relationship continued between Mr Moore and Mr Hoskin throughout the trial. 

[29]     In his affidavit Mr Speed said he did not recall Mr Hoskin ever saying anything to Mr Moore about Mr Bates; and that Mr Hoskin certainly did not say anything to Mr Speed, who as senior counsel was responsible for the carriage of Mr Moore’s defence, which might have affected the way that defence was run.  He said that Mr Hoskin was present to gain experience and as an observer and took no active part in the trial. 

[30]     This ground of appeal alleges serious misconduct, striking at counsel’s integrity, based solely upon a hearsay statement.  It is effectively answered by Mr Speed but this course should never have been necessary.  This ground was improperly raised and appellate counsel are reminded of the obligations imposed upon them when advancing grounds of incompetence or misconduct by trial counsel: see R v Clode [2008] NZCA 421 at [29] and [30]. This ground of appeal also fails.

(3)      Misdirection

[31]     Mr Moore’s third ground of appeal is that Gendall J misdirected the jury about the effect of expert evidence. 

[32]     In summing-up the Judge directed the jury that:

Now the expert evidence is largely unchallenged but you as a jury must decide what you make of it.  Mr Gatenby’s opinion evidence was that methamphetamine was manufactured in that garage from the equipment he analysed.  He could not say when or where because that is precisely your province.  That is precisely the task of the jury. 

[Emphasis added]

[33]     Mr Wilkinson-Smith submits that this passage reflects the Judge’s impression that the expert evidence supported a conclusion that methamphetamine had been manufactured in the garage.  In fact, he says, the expert evidence was that the mobile clan lab had been used to manufacture methamphetamine but Mr Gatenby could not say whether this had occurred in the garage or not.  While acknowledging that methamphetamine was located at the address in a blue plastic drink bottle mixed with toluene, Mr Wilkinson-Smith says there is no evidence that it was produced in the garage. 

[34]     The Judge may have erred in specifying that the manufacturing operation had occurred in the garage (neither trial counsel sought to rectify the error) but it is of no consequence.  It was for the jury to determine whether the Crown had proven that Mr Moore had participated in the process of manufacturing methamphetamine in the garage some time before his arrest.  Gendall J expressly acknowledged the jury’s function in the passage immediately following his reference to manufacturing in the garage. 

[35]     As Mr Nicholas Chisnall submits, the Crown’s case that Mr Moore had participated in a methamphetamine manufacturing activity within the garage in the hours preceding his arrest was based upon a wide range of circumstantial evidence.  He is correct that a complete inventory of the equipment and chemicals required to successfully manufacture further methamphetamine was present in the garage.  It was open to the jury to infer that the manufacturing occurred there and that Mr Moore participated.  And, as already noted, the intense chemical smell described by Mr Burrett and the officers was more consistent with manufacturing methamphetamine than its mere consumption.

[36]     This ground of appeal fails.

(4)      Unreasonable Verdict

[37]     Mr Moore’s final ground of appeal is that no jury could reasonably have found that he was guilty of manufacturing methamphetamine as distinct from an attempt.  Mr Wilkinson-Smith points to five factors in support.  They largely repeat the grounds of appeal advanced already, supplemented by reference to the evidence of a process of attempting to manufacture methamphetamine which began on 16 July 2006.  Mr Wilkinson-Smith submits that, at its highest, the evidence supported the lesser charge of attempting to manufacture methamphetamine. 

[38]     As Mr Chisnall submits, once the jury accepted that Mr Moore had participated in the manufacturing process, it was open to it to conclude that Mr Moore’s participation was in a process which was successfully completed.  We repeat that Mr Moore did not challenge the Crown’s evidence that the manufacturing process had been completed.  His defence was directed to the timing of the process, not its completion. 

[39]     We are satisfied that the jury had a sufficient evidential foundation for its verdict.  This ground of appeal fails.

Result

[40]     Mr Moore’s appeal against conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington