The Queen v Peter Francis Atkinson
[2000] NZCA 284
•19 April 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA546/99 CA553/99 CA69/00 |
THE QUEEN
V
PETER FRANCIS ATKINSON
KEVIN JOHN WILLIAMS
JAMES HENRY WILSON
| Hearing: | 28 March 2000 |
| Coram: | Tipping J Doogue J Cartwright J |
| Appearances: | P E Dacre for Appellant Atkinson P J Kaye for Appellant Williams L C Langridge for Appellant Wilson J C Pike and J Krebs for Crown |
| Judgment: | 19 April 2000 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
Introduction
These three appeals arise out of the same offending and were therefore heard together. Each appellant was found guilty of manufacturing the Class B controlled drug, methamphetamine. The appellant Atkinson was sentenced for this offence and others to a total of 12 years imprisonment. The appellant Williams was sentenced to 10 years imprisonment, and the appellant Wilson to 8 years imprisonment. For the reasons which follow the appeals against conviction all fail but the appeals against sentence all succeed.
The manufacturing operation took place in the garage of a property at Dykes Road, Karaka. That property was occupied by a Ms Posselt, who was granted immunity from prosecution in return for giving evidence against those said to be implicated.
Wilson - conviction
For proof of Mr Wilson's involvement the Crown relied substantially on his identification by Ms Posselt as a person who had visited the premises on one occasion during the course of the manufacturing operation. His ground of appeal is that the verdict of the jury was unreasonable or could not be supported on the evidence. That contention is made on the basis that Ms Posselt's identification evidence was not of a quality upon which the jury could safely rely.
We have considered everything which Ms Landridge raised in this respect, both orally and in her written submissions. The points she made were essentially jury points upon which Mr Wilson failed at trial. Ms Posselt's identification of Mr Wilson on the critical occasion was not of the "fleeting glance" kind. She professed to have seen him twice before, albeit in less favourable circumstances. Had the present submission been made at trial in the form of an application for a discharge under s347, each member of this Court would unhesitatingly have held there was sufficiently reliable evidence of identification to be left to the jury. It was for them to decide whether it satisfied them that the person concerned was in fact Mr Wilson. The ground upon which Mr Wilson's appeal is based has not been made out. His appeal against conviction is accordingly dismissed.
Williams and Atkinson - conviction
(a) Accomplice warning
The first point common to both these appeals is the Judge's decision not to give what can conveniently be called an accomplice warning under s12C of the Evidence Act 1908. This warning is said to have been required in relation to the evidence of Ms Posselt. Section 12C provides:
12C. WITNESSES HAVING SOME PURPOSE OF THEIR OWN TO SERVE--
Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his or her own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.
The section gives the trial Judge a discretion whether such a warning as is contemplated should be given. It was introduced in 1986 to change the hitherto mandatory warning into a discretionary warning. There is no suggestion in the present case that the Judge was asked to give the warning and declined. The point appears not to have been drawn to her attention and she was not therefore asked to make any ruling on it. We therefore do not have her reasons for declining to give a s12C warning. Clearly the experienced counsel who appeared at trial did not then consider it necessary to ask the Judge to give the direction which is now said to have been desirable, indeed necessary. That is not of course the end of the matter, but it is hardly a promising start.
It is not a case in which Ms Posselt's evidence was heavily attacked on the basis that she had any purpose of her own, either general or particular, to serve; albeit there was some suggestion that Ms Posselt was wrongly and falsely implicating Mr Williams in order to gain favour with the police and keep custody of her children. The Judge referred in her summing up to the fact the witness had immunity but did not expressly direct the jury that any particular approach to her evidence was thereby necessary. It can reasonably be inferred that the Judge did not feel it necessary to go that far. She may well have been influenced by the fact that Ms Posselt had a relatively minor and passive involvement in the offending. She provided the premises. What is more, during two days of cross-examination, the question of her having a purpose of her own to serve was touched on only twice, and then only lightly and without any obvious cogency. The implications of Ms Posselt's position must in any event have been obvious to the jury. It is a case where the Judge might have decided to give a specific warning. We are, however, quite unable to say that the Judge misused her discretion by not doing so. No miscarriage of justice is apparent on this aspect of the case.
(b) Previous statements
Ms Posselt was extensively cross-examined on two statements she had made before trial. The present complaint is that in her conventional direction to the jury on this topic the Judge, when speaking of credibility, did not distinguish between honesty and reliability. Both these aspects of credibility were in issue. Which aspect depended on which issue was being addressed. We cannot regard the Judge's direction as having undermined what counsel described as a careful distinction between reliability and honesty. We repeat what was said in similar circumstances in R v Worden CA111/99, 8 July 1999. The present argument, in the context of a jury direction, may have some semantic force. But in the circumstances of the present case, if not generally, it has very little, if any, substantive force. We are not persuaded that any miscarriage of justice has occurred on this aspect of the case.
(c) Lies
The argument here was that the Judge should have given a lies direction with regard to (a) the evidence of Ms Posselt, and (b) the evidence of Mr Williams and his alibi witnesses. Mr Atkinson did not give evidence. The Judge gave an appropriate direction on the subject of Mr Williams having given evidence. She said, amongst other things, that if the jury rejected Mr Williams' evidence (ie. found he was lying, for it could not have been a question of mistake), they should not automatically assume he was guilty; they should examine all the evidence they did accept to see if the Crown had proved guilt beyond reasonable doubt. This sort of direction is the normal equivalent of a lies direction when an accused person gives evidence. There was no suggestion by the Crown that either Mr Williams or indeed Mr Atkinson had told any out of Court lies relevant in any way to their credibility or their guilt. Why there was a need for a lies direction in relation to the evidence of Ms Posselt was not made clear. She was a witness for the Crown whose evidence the three accused were saying was unreliable in some respects and dishonest in others.
There is more confusion in submissions to this Court on the need for a lies direction than on almost any other subject. That confusion may derive in part from a short passage in the judgment of the Court in R v Toia [1982] 1 NZLR 555, 559. Cooke J who delivered the judgment said:
Secondly, and more commonly, proved lies by an accused, whether in evidence or in statements out of Court, may be relevant to credibility. This is no more than a matter of common sense. They may help the jury to decide whether the evidence for the prosecution should be preferred to an account put forward by the accused.
It is the observation "whether in evidence or in statements out of Court" that is open to misunderstanding. The Court was speaking generally about the effect proved lies could have on the accused's credibility. The Court was not indicating that the common, shorter, form of lies direction is always necessary whenever the Crown contends the accused has told lies in the witness box. Indeed in Toia the accused did not give evidence. Reference can also be made to R v Manapouri [1995] 2 NZLR 407, 413 (CA). Whatever it may be necessary or desirable to say about lies when an accused person is said to have lied in the witness box, the subject is usually best dealt with in the course of the customary directions about the possible effects an accused person's evidence can have.
A lies direction of the common kind (ie. directed to credibility) is necessary when the Crown is contending that out of Court lies weaken the accused's credibility. Very occasionally the Crown relies on out of Court lies as actually constituting affirmative evidence of guilt. In this rare kind of case the fuller and more difficult lies direction is necessary: see R v Dehar [1969] NZLR 763 and R v Bills [1981] 1 NZLR 760. The present was clearly not such a case.
In considering a complaint that a lies direction has not been given, it is important to bear in mind why the direction is given and what its purpose is. The direction is given because it is human nature to jump too readily to the conclusion that because someone has lied they must be guilty. The jury are warned to take care not to take that simplistic approach. The point being made is that out of Court lies are not necessarily evidence of guilt. It is the jury's reasoning process which is being addressed. Proper reasoning is a more disciplined process than simply assuming guilt because lies have been told. That is why the jury is advised that people do lie for reasons which may have nothing to do with guilt even though lies can of course be told in an attempt to conceal guilt. It is important to keep firmly in mind that the focus of the conventional lies direction is on such lies as the accused may be found to have told out of Court.
It by no means follows that the same kind of direction is required when the Crown contends that the accused has lied in the witness box. Whether the accused is lying in the witness box will often be the essential issue in the case. Classic examples are the person accused of sexual abuse who swears he never touched the complainant, or the person accused of a bank robbery who swears he was not involved. Mr Williams' defence in this case was essentially of the latter kind, ie. a denial of involvement in the manufacturing operation. In such a case the Crown has to satisfy the jury that its allegations are correct before the jury can be satisfied the accused is lying. The accused must already have been found guilty before any question of lying can arise. If there is a reasonable possibility the accused is not lying the Crown will have failed to prove its case beyond reasonable doubt. There may be more complex cases where the accused may be lying in what is said to the jury but where the Crown nevertheless has failed to prove the charge, but that is a relatively uncommon situation and is in any event normally dealt with sufficiently by warning the jury that even if they reject the accused's evidence they must not automatically assume guilt. In that warning the emphasis is on the word automatically because the reality is that if the jury reject the accused's evidence they will thereby be more likely to accept the Crown's evidence which will usually be the opposite side of the same coin.
What this demonstrates is the fallacy of thinking that a conventional lies direction is necessary simply because the Crown is contending the accused has lied on oath. Depending on the circumstances some modifications or additions may be necessary to the usual direction given about the three possible consequences of the accused giving evidence. In the present case the Crown did not rely on out of Court lies. Clearly it asserted Mr Williams and his alibi witnesses were not giving truthful evidence to the jury. But, as demonstrated, that circumstance did not require the conventional lies direction; indeed such a direction would have been unrealistic and inappropriate as tending to undermine the defence case. The jury might incorrectly think the Judge was signalling that the accused may have lied in his testimony. The Judge gave the jury a proper direction about the fact that Mr Williams had given and called evidence and the way the jury should approach that evidence. No miscarriage of justice arises from the summing up in this respect.
(d) Putting the defence case
Counsel submitted that the Judge had not given a sufficiently balanced and detailed summary of the cases put forward by Mr Atkinson and Mr Williams in comparison with her treatment of the Crown case. This submission came to incorporate the points put forward on behalf of Mr Williams concerning the two Kevins and the Judge's use of the expression "numerous sightings". We accept that the Judge tended, when summarising the Crown case, to introduce more detail than she did for the defence cases. There can be no doubt, however, that the Judge clearly put before the jury the essentials of the cases advanced by the defence. The Crown called substantially more evidence than did Mr Williams, he being the only one of the appellants to give evidence. It was natural that the Judge's traversal of the Crown case should have taken longer than that of the defence. The general approach to an argument such as this was discussed in R v Foss (1996) 14 CRNZ 1. In spite of the length of the trial the essential issues were not difficult to articulate. In the end it is a matter of considering balance and content, and then deciding whether the Judge held the scales fairly between the Crown and the defence when directing the jury. While some Judges may have elected to involve themselves rather more in the detail of the defence contentions, we are unable to say that there was a failure to hold the scales fairly, certainly not of such a kind as to constitute a miscarriage of justice.
(e) Conclusion
As none of the points of appeal succeed, and we are satisfied there has been no miscarriage of justice overall, the appeals by Mr Atkinson and Mr Williams against their convictions are dismissed.
Sentence appeals
For the purpose of considering this aspect of the case, we will indicate how the Judge viewed the offending by setting out her description of it in her remarks when sentencing Mr Atkinson and Mr Williams. Mr Wilson was sentenced separately but basically in terms of the same approach. We have not overlooked the points made by counsel as to the accuracy of some of what the Judge said, but her description is sufficient to put the offending in its general context:
The manufacturing operation that gives rise to these charges was conducted in a garage at a property at 55 Dykes Road, Karaka during the latter part of August and the early part of September 1998. Atkinson had made the acquaintance of a prostitute who I shall describe as Ms P who was a principal witness in the trial. He met her at various motels on three occasions from 11 August 1998. He ascertained from her that the property she was about to rent at 55 Dykes Road had a large garage separate from the house. He indicated that he might be interested to have the space in connection with motor cycles. He eventually arranged to sub-let it for $100 per week. The arrangement was confirmed, on the evidence of Ms P, when Kevin Williams came to the property with Peter Atkinson on 23 August 1998 and they declared the premises perfect for their purposes. Atkinson described Williams as his partner. From 25 August through until about 8 or 9 September, there was significant activity at the garage, which was described by Ms P in evidence. Vehicles and a range of people came and went frequently by day and night. Among those were Atkinson and Williams who frequently featured at the property and in the garage. The windows were covered over. The garage was padlocked. Ms P gave evidence of a strong odour, a bitter smell, which came from the garage starting on about 27 August and continuing in the atmosphere for the days that followed into September. On or about 9 September she found the roller door of the garage slightly up and it appeared that the occupants had vacated.
Following leads the Police executed a search warrant at 55 Dykes Road on 22 October 1998. It was then for the first time that they interviewed the witness Ms P. She named to the Police certain persons whom she believed had been involved in the activities at the garage. Two of those people stand before me for sentence today. The Police took equipment and articles from the garage which were subsequently tested, as was the garage and its environs. Dr Norris from ESR gave evidence of the analysis of Methamphetamine in the swabs taken from the garage and from certain of the equipment and articles. The Police concluded that a significant manufacturing operation of the drug Methamphetamine had been conducted under the control of Atkinson and his partner Williams and involving other persons, during the period 25 August to 8-9 September in the garage at 55 Dykes Road.
There was no evidence at trial of the precise amount of Methamphetamine manufactured at 55 Dykes Road or of the strength or street value of the drugs manufactured. However, there was evidence of a significant operation extending over a period of approximately two weeks and involving intense activity throughout that time. On the basis of the expert evidence, it is likely that at least two bakes were concluded during that period. The equipment and the set-up indicated that the manufacture was sophisticated and on a commercial scale. Documentation found with Atkinson and Williams confirmed that was so.
Ms P gave evidence of Atkinson producing Methamphetamine in plastic bags on the occasions she met with him and using it on two of those occasions. He described to her one bag as having a value of about $40,000. She helped him count cash totalling about $13,000 on the third occasion she met with him. When he was arrested he had approximately $19,000 in cash on his person. Ms P gave evidence of Atkinson recounting to her that he distributed drugs through the gangs Highway 61 and Filthy Few.
Speaking of Mr Atkinson and his background and participation in the present offending, the Judge said:
I turn now to consider the individual involvement and circumstances of these two prisoners. Each has long criminal histories. In the case of Atkinson his recorded criminal offending dates back to 1961 and he has been imprisoned for offending on numerous occasions since 1966. In 1991 he was convicted of possessing heroin for supply and sentenced to 6 years imprisonment. In February 1988 he was convicted for using a firearm against a law enforcement officer and imprisoned for 5 years 9 months. He has been convicted of 6 charges of aggravated robbery involving a firearm. His convictions include some 17 for burglary and theft. On the evidence he was clearly the ringleader in this operation, the mastermind, the principal planner and organiser, the person with the expertise to conduct a successful bake.
Of Mr Williams, the Judge said:
Williams was present at the property at the set-up stage of the bake and frequently throughout the relevant period. Kevin Williams' criminal history dates back to 1965 and includes numerous drug related offences, including possession of heroin for supply in 1978 and 1990, manufacturing heroin in 1990 and 1993, 5 charges of supplying heroin also in 1993. He has served lengthy terms of imprisonment as a result, and of course a recent period of imprisonment in relation to the 1993 very serious charges.
The Judge then noted the submissions which counsel had made and referred to the decision of this Court in R v Wallace & Christie [1999] 3 NZLR 159. In that case the Court comprehensively reviewed sentencing levels for manufacturing methamphetamine. The Judge then said:
In applying the principles comprehensively set out by the Court of Appeal in R v Wallace and Christie, I consider the manufacturing operation in this case, at least on the available evidence, was not as extensive as that considered by the Court in Wallace & Christie. The evidence points to a deliberate, well-planned and organised manufacturing operation in the garage at Karaka, but there is no detailed evidence of the amount of Methamphetamine produced, its purity or value on the street, nor of the returns it produced or was likely to produce, for those involved in the manufacturing activity. What can be said is that this was a manufacturing operation of some sophistication, carried out by persons clearly involved in the commercial manufacture of Methamphetamine, and I believe it can be safely inferred, that the manufacture produced significant quantities of the drug. This was commercial activity of some considerable scale. I take as a starting point for sentencing 9 years. I take 9 years as being towards the bottom of category one described by the Court of Appeal in R v Wallace & Christie, or viewed another way, just over the top of category two. There are no mitigating factors that can be brought into consideration for either of these prisoners. As I have said, personal circumstances, addiction being one of them, are not matters to which the Court can give any significant weight when sentencing for such serious crimes. Unlike Wallace & Christie, here there have not been guilty pleas, and also unlike the situation in Wallace & Christie, I am sentencing people who have long lists of serious previous convictions, who are without doubt a high risk to the community when they are at large.
In the course of formally passing sentence, the Judge referred to "the bake or bakes" thereby implying some uncertainty as to whether one or more bakes had taken place. The essence of counsels' submissions for all appellants, was that the Judge had mis-categorised the offending in terms of Wallace & Christie, and both for that reason and generally she had imposed sentences which were manifestly excessive. In Wilson's case reliance was placed on his limited proved participation which justified, in his counsel's submission, a sentence at a substantially lower level than those imposed on the other two. The key passage in Wallace & Christie is at page 172 (paragraphs 30, 31 and 32). There the Court summarised its review of sentencing levels for manufacturing methamphetamine in this way:
[30] The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.
[31] Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range five to eight years.
[32] For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.
We are bound to say that we find ourselves unable to agree with the Judge that the present offending fell into the highest category involving offending on a "major scale" as opposed to the next category which involves offending on a "substantial scale". It is implicit in the way the middle category is expressed that the highest category involves "massive quantities" or "prolonged dealing". Neither was established in this case. We consider this offending fell squarely into the middle category requiring a starting point of between 5 and 8 years. Rather than being at the bottom end of what the Judge described as category 1, we consider the offending can fairly be viewed as being in the upper half of category 2. Seven years was the appropriate starting point rather than 9 years.
Working from that base, we consider the sentence appropriate for Mr Atkinson involved the addition of 2 years for his previous very bad record, plus another year for his additional offending (possession for supply, and possession of a pistol). That makes a total of 10 years. We therefore allow Mr Atkinson's appeal against sentence and reduce his head sentence from 12 years to 10 years. His other sentences of 10 years and 2 years will stand running concurrently.
In Mr Williams' case we consider 2 years should be added to the starting point on account of his extremely bad record, the gravity of which is much the same of that of Mr Atkinson. We therefore allow Mr Williams' appeal against sentence and reduce his sentence from 10 years to 9 years imprisonment.
In the case of Mr Wilson his proved participation was distinctly more limited. It justified an appropriate discount from the starting point. He was shown to have visited the premises only once. The suggestion that he was a key link in the distribution chain through the two gangs was not established with sufficient cogency to allow that aspect to feature significantly in the sentencing process. The Judge noted that the manufactured drug was destined to be distributed through Highway 61 and the Filthy Few. She observed that Mr Wilson was a patched member of the Filthy Few, but made no reference to any evidence satisfying her that he was a link in the distribution chain in respect of this manufacturing operation. The evidence to which the Crown referred us does not provide any safe inference to that effect. There was evidence of a close association between Mr Wilson and Mr Atkinson which suggests his involvement in the manufacturing process was by no means trivial. We do, however, consider that there must be a marked difference between the level at which Mr Wilson is sentenced as against that appropriate to Mr Atkinson and Mr Williams. For these reasons Mr Wilson's appeal against sentence is allowed. His sentence is reduced from 8 years to 5 years imprisonment.
Solicitors
Crown Law Office, WELLINGTON
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