The Queen v Nahandi

[2007] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND

CA426/06
[2007] NZCA 130

THE QUEEN

v

ASAL NAHANDI

Hearing:28 March 2007

Court:Chambers, Chisholm and Gendall JJ

Counsel:P J Kaye for Appellant

K B F Hastie for Crown

Judgment:17 April 2007     at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Gendall J)

[1]       The appellant was convicted by a jury in the Auckland High Court on 31 August 2006 on one charge of possessing methamphetamine for the purpose of supply.  The trial Judge, Lang J, later sentenced her to two years nine months imprisonment.  The appellant now appeals against conviction and sentence.

Background

[2]       On 21 June 2005 the police executed a search warrant at a property in England Street, Freeman’s Bay.  Whilst the warrant was being executed, the appellant and her partner arrived in a motor vehicle.  Upon entering the address the appellant was searched and six grams of methamphetamine were located in a pouch in the front pocket of her jeans.  The vehicle in which the appellant had arrived was also searched and a set of digital scales with traces of methamphetamine on them were found, together with a glass pipe commonly used to smoke methamphetamine, within the appellant’s jacket in the vehicle.  The appellant’s fingerprint was found on the box which contained the digital scales. 

[3]       When questioned by the detective at the house the appellant said that she did not know what was in the pouch in her jeans, which she had been wearing for a couple of weeks.  When asked if she had any idea of what was in the pouch, she said that “it would probably be P” but said that she did not know whose it was.  She said that she was doing a law degree and that she knew that P was a class A controlled drug.

[4]       The appellant gave evidence to the effect that she had been in a relationship with the man who accompanied her to the address.  She said she had been assaulted by him in the past but went with him to the address for the first time in order to buy some jewellery.  She said she did not know what was in the pouch and did not question her partner because of his angry disposition in the past.  She admitted using methamphetamine in the past and that she may have touched the digital scales which she said belonged to her partner.  She said that she did not tell the police how she came by the package in her jeans because her partner had said to her to say nothing.  She said the jacket in the rear of the car was hers and that she had used the pipe in the jacket to smoke methamphetamine in the past.   She said that she had previously seen her partner use those scales to weigh his methamphetamine and that this might explain the traces of methamphetamine found on them.  

[5]       The defence case was that the appellant was fearful of her partner, being in an abusive relationship and that her actions at the house on that day, whilst giving rise to suspicion, were consistent with what she said about the circumstances.  Whether or not she was in possession, the Crown had not satisfied the jury beyond reasonable doubt that she had the necessary element of possessing the methamphetamine for the purpose of supply.  Clearly the jury rejected her explanation and found that the prosecution had proven its case to the required standard.

[6]       The grounds advanced on appeal against conviction were, first, that the jury should have been discharged following a police witness, who was being questioned about the appellant’s presence at the property, giving unsolicited opinion evidence which was said to be illegitimately prejudicial to the appellant. Secondly, it was argued that the grounds did not exist to justify the issue of the search warrant, so that the subsequent search of the appellant pursuant to s 18 Misuse of Drugs Act 1975 was unlawful and evidence obtained from it was inadmissible.

[7]       The appeal against sentence was presented on the basis that a sentence of two years and nine months imprisonment was manifestly excessive in the circumstances.

Failing to discharge the jury or deliver a strong caution

[8]       This submission arises because in the course of cross-examination at trial Detective Martin of the Auckland Drug Squad volunteered opinion evidence prejudicial to the appellant.  The detective was present at the property when the appellant and her partner were arrested.  The appellant was informed of her rights and cautioned and the detective noted the statements referred to in [3] above.  When cross-examined, the detective acknowledged that from time to time the appellant’s partner, who was downstairs whilst the appellant was upstairs, called out words to the effect that he did not want her to speak to the police and she was “not to tell the police anything”.  The detective was then asked by Mr Speed, the appellant’s trial counsel, whether she was left with the impression that the appellant’s partner had psychological control over her.  The Judge observed that that would be a matter of “extreme conjecture”.  Counsel then took the detective through the events of interaction between the appellant and her partner.  No doubt that was because of counsel’s contention that the appellant’s partner had psychological control over her.  The exchange proceeded as follows.  (We have, in this paragraph and the next two paragraphs, italicised the comments to which exception was taken at trial and is now taken again on appeal.  We have also inserted punctuation to aid legibility.)

A.Yes, I was upstairs and I went downstairs.  Mr Rankin was then spoken to by Detective Reardon.

Q.Did you observe any interaction between Mr Rankin and Ms Nahandi yourself?

A.No, I don’t recall any because they were separated at that time.  The only interaction – I don’t know if you are talking physical[?].

Q.Any interaction?

A.All I recall is his reiterating to her (during the time that she and I were speaking), telling her not to speak to us and tell us anything.

Q.Did you observe whether that had any effect on her when he said that?

A.Not really… um – I’m talking to a lady who is clearly intelligent a first year law student, who clearly knew that what she had in her pocket was a class A controlled drug.  No, she replied to him and clearly they cared about each other.  I can’t go further than that.

Q.Did you tell her you would be contacting the law school about what you discovered in her pocket?

A.No, I don’t think that was something I voiced out loud to her. 

[9]       There was then a discussion in the absence of the jury on an unrelated matter, following which the cross-examination of Detective Martin continued:

Q.When you spoke to Ms Nahandi at the address in England Street, interviewed her during the course of the interview, at some stage did you say to her: “This is in respect of the methamphetamine which had been found, we know it is Peter’s, why don’t you just tell us and I will let you go?” And also: “Why don’t you admit that it is Peter’s and not yours, why don’t you tell us?”

A.Why on earth would I let the lady go?  No, I certainly didn’t promise we would let her go.  She is an intelligent woman who had arrived at the address with the drugs that the occupiers were waiting for –

Q.That is not an answer to my question.

A.It’s “no”. I certainly did not at any time offer to let the lady go, because I believe she is guilty of that crime for which she is charged – in terms of who actually owned the methamphetamine that is clear by my questioning that, yes, I did believe it belonged to Mr Rankin in terms of other comments.  As I have said we had a conversation while upstairs.  We did have a conversation about matters unrelated to these proceedings – about Ms Nahandi and Mr Rankin about personal details of their relationship, and events that had happened in the past which I don’t want to go into.  I don’t believe they are relevant…

[10]     The third answer to which objection has been made was in this exchange:

Q.Did you also say “why don’t you just admit that it’s Peter’s and not yours?  Why don’t you tell us now?”

A.No.  It wasn’t an interview that was threatening in any way.  We sat on the floor upstairs…No.  Ms Nahandi became tearful at one stage, because I think she recognised the enormity of what she had done.

[11]     It is those exchanges that counsel submits were improper on the basis that they comprised gratuitous and prejudicial comments uninvited by the questions.  It was submitted that the opinion evidence about the state of mind or motivations of the appellant when she was at the address should not have been offered or given by the witness.  In the absence of the jury, the Judge was asked by defence counsel to discharge the jury but declined to do so.  However, he then addressed the jury, and his minute records:

Mr Foreman and members of the jury.  Just before the next witness is called, there are a couple of matters I want to raise with you about the evidence of the previous witness.  You have just heard that on several occasions she volunteered her opinion that went beyond the actual question she was asked.  Two of these are on page 13. 

[12]     The Judge then repeated the comments to which we have referred, and  went on to say:

You will understand, Mr Foreman and members of the jury, those are completely matters of opinion and conjecture.  The witness was not asked her opinion in those matters and they are the kind of matters that are solely for you to determine.  Unfortunately, she voiced her opinion before anyone could stop her.

You must put them completely out of your mind.  Those questions do not form part of the evidence in this case.

[13]     Early in his summing-up the Judge repeated that warning to the jury.  After directing that the jury needed to reach their verdicts on the evidence, he added:

It does not, as I have already indicated the other day, include the gratuitous remarks that Detective Martin made to you regarding her view of matters.

[14]     As Mr Kaye submitted, the essential issue on this point was whether the Judge erred in declining the request of counsel to discharge the jury.  Mr Kaye contended that the trial had been fundamentally flawed and a miscarriage of justice therefore arose.

[15]     We do not accept that submission.  Beyond doubt, the gratuitous comments ought not have been made, although the line of questioning pursued by defence counsel may have been risky, in particular to the extent that it proceeded on the basis of putting leading questions to the detective suggesting  what the appellant’s state of mind might have been.  The Judge was alive to the risk of conjecture as was apparent from his earlier intervention.  But once the offending opinions had been volunteered, the Judge took immediate steps to ameliorate the position.  Whatever prejudice  arose, we are satisfied that it was curbed by the Judge’s remarks to the jury both at the time and later in his summing-up.  He could not do anything more than he did and we do not think he erred in the exercise of his discretion not to discharge the jury. It is, after all, inherent in every prosecution that the police believe the accused is guilty of the crime charged.  Otherwise, the prosecution would not be brought.  It is neither normal nor appropriate for that belief to be expressed, but the expression of it by the detective told the jury nothing they would not have understood.  The manner in which the Judge dealt with the issue was appropriate and effective and no risk of miscarriage of justice arose through the trial continuing.

The search warrant

[16]     The second argument advanced on behalf of the appellant concerned the issue of the search warrant on which the police were acting at the time the appellant and her partner arrived at the premises.  A search warrant had been issued by a Deputy Registrar based upon information contained in an affidavit of a detective attached to the Auckland Drug Squad.  A challenge to the admissibility of the evidence and the validity of the search warrant was made on the morning of trial.  The Judge had to deal with it then, and ruled the search warrant to have been validly issued. 

[17]     In his later written reasons, the Judge recorded the facts contained in the affidavit of the detective which he regarded as relevant in determining whether the Deputy Registrar could have been satisfied that there was “reasonable ground” for belief as required in s 198(1) Summary Proceedings Act 1957. 

[18]     The essential matters contained in the affidavit were:

·     a confidential informant had observed numerous persons visiting the suspect property at all hours of the day and night behaving in a manner that suggested that some form of illegal activity was being conducted at the address. 

·     registration numbers of a number of motor vehicles that visited the property were recorded by the informant.

·     the detective checked those against the police computer database which revealed that five of the vehicles had been of interest to the police in the past, being associated with gang members, gang addresses, or in some way with methamphetamine. 

[19]     The appellant’s counsel challenged the warrant in the High Court and before us on the basis that the facts in the affidavit gave rise to no more than suspicion.  All it contained was evidence of multiple visits to the property over a 24-hour period involving 33 different motor vehicles.

[20]     Counsel submitted that the additional evidence, namely the background of some of those motor vehicles and the suggestion that at some earlier time they were linked with gang members and users of methamphetamine, did not take the matter further because such evidence was dated or “stale”.  He contended that it was not logical to conclude that those vehicles visited the address for an illicit purpose, because such visits could have been for any number of reasons.  He submitted that such visits, taken alone, could not provide the necessary “grounds” for belief.

[21]     Lang J considered the fact that 33 cars had visited the property over a 24-hour period was at the very least suspicious.  But what took the matter beyond mere suspicion was what the police background checks on five of the vehicles revealed.  One vehicle had seven months earlier been used by a transient person known to the police to be involved in the manufacture and distribution of methamphetamine who resided at different motels in Auckland.  A second vehicle had been observed nine months earlier to visit an address which was associated with the Highway 61 motorcycle gang and persons at that address were frequently seen consuming methamphetamine.  That vehicle had also been checked at Paremoremo Prison earlier in 2004 with the result that methamphetamine and associated paraphernalia were located, and it had also been observed visiting Mt Eden Prison.  A third vehicle was registered to a person associated with the 45 gang and in February 2004 the owner of that vehicle had admitted that she was a user of methamphetamine and that her partner (a heavy user of the drug) was assisting members of the gang in the manufacture of the drug.  Two other vehicles were found to have been associated with the Hell’s Angels and Mongrel Mob gangs. 

[22]     The Judge considered the most important information was that relating to the direct connection three of the vehicles had to the drug methamphetamine.  We agree with the Judge’s conclusions:

[39]     …[T]hat information provided reasonable grounds upon which Detective Reardon could conclude that the activities being carried out at the address were likely to have some involvement with drugs, and with methamphetamine in particular.

[40]     Moreover, Detective Reardon, and through him the Registrar, were also entitled to take into account the connection between other vehicles and gangs in the Auckland area.  The connection between gangs and the manufacture and distribution of drugs is well known to all police officers in New Zealand.

[41]     The informant had also told Detective Reardon that people outside the address had heard yelling to those inside about money being owed.  The payment of money, and the accumulation of debt from the purchase of drugs, is an obvious and common feature about drug dealing activities….

[42]     In summary, the Deputy Registrar was able to draw on the information provided to Detective Reardon by an apparently reliable informant who was personally known to the detective.  That information suggested that the occupants of 21 England Street, Freemans Bay were receiving an extraordinary number of visitors at all hours of the day and night.  The conversations that were overheard appeared to relate to commercial transactions in respect of which monies remained owing.

[43]     That information was supplemented not only by the detective’s general knowledge and experience, but also by the direct connection between several of the vehicles that visited the address and the drug methamphetamine.  Further, although less significant, confirmation was provided by the association between some of the vehicles and gangs.

[23]     It was a remarkable coincidence that, of the 33 vehicles seen to be visiting the premises over a 24-hour period, five had some relationship to gangs or the drug methamphetamine.  The combined effect of all the circumstantial evidence and material presented by the detective to the Deputy Registrar provided sufficient evidence for the issuing officer to be satisfied that reasonable grounds existed for the necessary belief.  The search warrant was validly issued.

[24]     The trial Judge’s ruling in respect of the search warrant was correct.  The evidence was admissible.  The appeal against conviction is dismissed.

Appeal against sentence

[25]     Lang J held the appellant’s offending fell at the upper end of the first band or at the lower end of the second band in R v Fatu [2006] 2 NZLR 72. He took a starting point of three years three months imprisonment. That was within the permissible range. Although the appellant had previous convictions, which included possession of cannabis, these were not treated as an aggravating factor for the purpose of sentencing. The Judge reduced the sentence from the starting point by six months because the appellant felt intimidated by her partner arising out of the abusive relationship with him. Again, that was an acceptable discount. The end sentence of two years nine months imprisonment was not manifestly excessive.

[26]     The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington