The Queen v Nigel Ross Clements

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 312/00

THE QUEEN

NIGEL ROSS CLEMENTS

Hearing:	20 November 2000
Coram:	Richardson J
Robertson J Goddard J
Appearances:	K Raftery for Crown
R Laybourn for Appellant
Judgment:	20 November 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

The appellant and his partner were convicted on a joint charge that on 22 April 1999 at Matamata they had in their possession a Class C controlled drug, cannabis material, for the purposes of sale.
A police search pursuant to a warrant of the residence of the appellant and his de facto unearthed in a wardrobe in the master bedroom, two tupperware containers of cannabis plant material, a small tin of cannabis plant material and also a rubbish bag with cannabis plant material. The cannabis was on a shelf in the wardrobe. There was almost 1 kilogram of cannabis packaged in 30 bags each containing in the vicinity of an ounce.
Arrangements were subsequently made for the appellant to go to the Matamata Police Station. He arrived at about 1.30 pm as a result of a telephone call to him on his cellphone. When he was given his rights he indicated that he wished to speak to his lawyer. Having done so he declined to make any statement but said that the cannabis was not his.
At trial he gave evidence and indicated that living with him and his partner were four children of hers. He indicated that the cannabis had come into the house via his partner’s 12 year old son and that having discovered it they were looking after it until they could decide what was to be done about it. They indicated they had been holding it for over a month before the police search but said they had been “blown away” by discovering it and just did not know what to do or how to do it.
There were two issues at trial as far as this appellant was concerned. First, whether in law he had possession as well as did his partner who had removed it from her child. Secondly, as there was more than 28 grams the onus was on any possessor to establish on the balance of probabilities that it was not for sale. This Mr Clements endeavoured to do by the explanation he provided as to how it came to the house and why it remained there in the evidence he gave before the jury.
Similar evidence was given by his partner Ms Edge.
There were pure jury issues.
The substance of the appeal is that the Judge had not dealt even-handedly in his summing up between the Crown and the defence and that the directions which were given were unbalanced and unfair with the consequence there had been a serious miscarriage of justice and a retrial should be ordered.
Three specific issues were raised as well as a more general contention of an absence of balance in the summing up. We note that these issues were discussed at length immediately after the jury had retired but the Judge was not persuaded to give any further or other direction to the jury in light of the criticism which had been advanced by counsel.
The first specific complaint related to the evidence of a Constable Brill who indicated that although in his experience related paraphernalia including scales, sums of money, tick lists and notebooks showing sales and expensive items beyond the visible means of the occupants of the house “can be found” in cannabis investigations nothing of this sort had been found.
The appellant’s counsel had submitted that the absence of such material was consistent with the appellant’s defence of having no intention of selling or dealing in cannabis.
The Judge in his summing up said :
The evidence is that the Police did not find any scales, cash, tick lists, extravagance, extravagant items or such like. Certainly if scales had been found, large items of cash had been found, tick lists found, then it is clear that you would have heard evidence about it and the Crown would have, of course, made a submission that this supported drug dealing. But the absence of such items does not necessarily provide evidence that the accused did not have that purpose. For that to be the case there would have to have been evidence that in all cases, dealers always had scales, large amounts of cash, tick lists or such like present and, of course, the evidence is not to that extent, as you would not expect it to be. And I am sure that you would appreciate that there can be dealers who do not have scales, tick lists, large amount of cash, in their house. It is not necessary, if they are found then clearly they will be evidence that support the case against a dealer but the fact that they are not there, does not necessarily mean that they are not dealers. It is simply evidence that does not support the case against the accused. It is very much neutral evidence.
It is submitted that the Judge was wrong to direct the jury in these terms and that the defence was entitled to point to the absence of such indicia as circumstantial evidence which was consistent with the defence of an innocent and essentially unwanted possession of the cannabis.
Reference was made to the decision of this Court in R v Rewha (CA 252/00, 28 September 2000) where the Judge had directed in a similar way and this Court said :
Whilst the Judge was strictly correct to say that there was no evidence to point to the fact that drug dealers always have these items the defence had directly and inferentially established that such possession was not uncommon nonetheless and their absence in this case may have been a pointer for the jury away from a conclusion as to dealing and more to one of possession for own use. The Judge had in the event excluded it as not for consideration because there was no evidence that all dealers would always have such indicators of dealing in their possession. Importantly he had said that such matters did not assist the jury.
By directing the jury in this way it can be argued that the judge had incorrectly excluded evidence of a circumstantial kind from the jury’s consideration. We have been concerned at such a forthright rejection by the trial Judge of evidence which may well have assisted the jury and we reject the Judge’s suggestion that there was no evidence to that effect. Plainly there was, and in a case which depended on circumstantial evidence and balancing the relevant factors such a direction could in some cases well result in a miscarriage of justice.
The appellant’s contention is that as a result of this misdirection there was a serious miscarriage of justice as the appellant was effectively deprived of the benefit of the evidence which could well have assisted in discharging the onus which was upon him.
The second complaint related to a submission which had been made on the basis of the evidence that the son of the de facto partner had been suspended from his high school for cannabis use at about this time.   On this point the Judge said :
The next point that Mr Laybourn raised, that I want to cover with you, concerned Lance, the 12 year old boy. It featured in the evidence of both accused.   To a large extent, Mr Pyke has covered this point as well in respect of his address involving Ms Edge. It is to this effect that – the Crown did not challenge and, indeed, you should accept, that the Crown accepted that Lance was suspended from school for cannabis use about this time. The essential submission from both Mr Laybourn and Mr Pyke in this respect is that this lends some credence, some support, to the evidence that they have given and as the Crown did not challenge this evidence must mean that the Crown accepted that Lance was suspended from school for cannabis use at or around this time.    And that this lends some support to their explanations as to how they came into possession of the cannabis.
What I need to say to you is this – it is possible that both scenarios could exist independently of the other. That is, that either or both of the accused could have been in possession of that cannabis for the purposes of selling it and Lance could have been caught at school for cannabis use.   But, in the end, it is a matter for you to assess.   But just because Lance might have been suspended from school or cannabis use does not necessarily support the evidence given by either accused, their explanation. So that is a matter entirely for you to assess. I simply raise it with you that, if you accept the evidence that Lance was suspended from school at or around that time, that does not necessarily mean that you must accept the evidence of either accused as to how they came to know about this cannabis.
It is submitted that this was an unfair intrusion by the Judge into the facts of the case and was another serious undermining of the defence position.
The final point related to a submission which had been made with regard to the fact that an informant had gone to the police station as a result of which the search warrant had been issued and was unlikely to have been the appellant or the partner. The trial Judge criticised the submission on the basis that it was speculative and said :
It may be that, for example, Lance told someone at school that his mother and Mr Clements had cannabis in the cupboard and that person went on and told a teacher who told the school. We do not know and, of course, that, on the current state of affairs, is as valid to raise as an explanation, a possible explanation, as a complaint that this was a clear case of a set-up. It is just speculation. There is no profit in speculation. The evidence does not help on this point.
The appellant now contends that as a result of these three specific matters and generally because of the approach adopted, there was not a fair statement to the jury of the defence position without adverse criticism or comment on the various aspects of it.
It is the duty of the trial Judge in an objective and independent way to remind the jury of the defence case and it can be unfair if that simultaneously involves a demolition of the position being advanced.
The Judge in this case reminded the jury of the different functions they each had in respect of law and fact. He appears to have taken the view that there was a need to overcome what was later described as “strong advocacy which had included some misstatement.”
It was submitted that the particular formula used by the Judge in this case was less strong than had been the position in Rewha, where in any event this Court did not quash the verdict returned.
It might have been more desirable if the Judge had, without comment, simply reminded the jury of the position being advanced by the defence, having separately spoken about any misstatements or misinterpretation.
However there was nothing complicated about what the jury had to determine. The co-accused had accepted that she had possession of the material, albeit reluctantly and unwillingly. The jury had to determine whether it had been proved beyond reasonable doubt that Mr Clements was also in possession.
Once possession was established, because of the quantity, the onus was on the possessors on the balance of probabilities to show that they did not have it for the purpose of sale.
The jury had the advantage of hearing and seeing both these people speak about why they had the cannabis and the circumstances in which it had come into their possession. The jury heard the full explanations and saw the witnesses as they gave them.
When the summing up is taken as a whole we are persuaded that although the Judge might be thought to have been somewhat vigorous in the way that he dealt with the position being advanced by the defence the jury could have been left with no doubt as to the essential questions of fact which they had to determine. Therefore there could be no miscarriage of justice.
The appeal is accordingly dismissed.

Solicitors:

Crown Solicitor, Auckland

[2000] NZCA 335

20 November 2000