The Queen v Rhett Donald Hardy

[2003] NZCA 207

IN THE COURT OF APPEAL OF NEW ZEALAND

CA168/03

THE QUEEN

v

RHETT DONALD HARDY

Hearing:28 August 2003

Coram:Anderson J
William Young J
Heath J

Appearances:  M A Edgar for Appellant

M R Heron for Crown

Judgment:28 August 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal and the facts

[1]        This is an appeal against conviction by a High Court jury on eight counts relating to Class B controlled drugs.  One count was in respect of possession of Ecstasy, amounting to 236 tablets.  The other seven counts related to the then Class B controlled drug Methamphetamine and comprised one count of manufacturing, one count of possession for supply, one count of possession of equipment capable of being used for manufacture and four counts of possession of a precursor substance.  An appeal against sentence, included in the Notice of Appeal, has not been pursued and will be dismissed for want of merit.

[2]        The Crown case is that the appellant was the tenant of rented premises situated at 182 Devon Street, New Plymouth, in respect of which the Police executed a search warrant on 29 December 2001.  In a small loft area they observed a small silver nail in the wall with a piece of green string attached leading down into a cavity.  On withdrawing the string they pulled out a snap-lock plastic bag containing smaller deal bags of Ecstasy pills and other items.  In another wall cavity in a different part of the premises they found more deal bags containing varying quantities of Methamphetamine.  Other deal bags were found throughout the residence and so too was a book dedicated to recipes for and the processes of making Methamphetamine.  Some of the deal bags contained the appellant’s fingerprints.  There was also located a digital camera which had stored in it images of bottles and precursor substances. 

[3]        The Police then executed a search warrant on a house at 53 Woodleigh Street, New Plymouth, which was occupied by the mother of the appellant’s estranged partner.  Articles seized in the course of the search included a suitcase containing laboratory equipment and chemicals relevant to the manufacture of Methamphetamine.  The suitcase was discovered in the crawl space under the house.  Also seized from that address was a laptop computer which contained e-mails sent to the appellant’s e-mail address and other data, all of which was relevant to the manufacture of Methamphetamine.

[4]        The first count in the indictment, which related to Ecstasy, particularised the time of offending as “on or about the 29th day of December 2001” and the locus of the offending as “at New Plymouth”.  The other seven counts which related to Methamphetamine specified as particulars “between the 29th day of December 2000 and the 29th day of December 2001 in New Zealand.” 

[5]        It was relevant to the Crown case to show that the appellant had access to the two premises but it was common ground between the Crown and the defence that the appellant had not been near New Plymouth for at least three days before the search warrants were executed.  On the first day of the trial, after the Crown had led evidence from the estranged partner’s mother, counsel then appearing for the appellant cross-examined the witness in connection with the possibility of travel by the appellant to visit family members in Australia in November 2001.  The following day, which was the last day of evidence, the Crown indicated a wish to lead evidence from Constable Ashton who was the officer in charge of the particular investigation.  The intended evidence was that photograph albums, found at 182 Devon Street, contained photographs of the accused; that there was a diary containing entries indicative of the appellant’s movements at possibly relevant times; and the fact that invitations to attend the appellant’s 40th birthday party in the week following the execution of the search warrant were also found at the Devon Street address.

[6]        The Judge ruled that such evidence was not able to be led by the Crown because that would be unfair to the appellant.  He held that the issue of control, relevant as it was to the concept of possession, was a central issue and there had been ample time for the Crown to consider and plug possible holes in their case.  Further, the evidence was of limited probative significance. 

[7]        Shortly before the Crown case closed counsel for the appellant made available to the Crown a proposed brief of evidence from a Ms Bennett which, the Judge held:

…so far as it goes suggests that for most of the period November/December 2001, the accused was living and working in Auckland in almost daily proximity to the witness.

[8]        Counsel for the Crown took issue with the proposed leading of such evidence on the grounds that it was alibi evidence and Notice of Alibi had not been given in terms of s367A of the Crimes Act 1961.  The Crown sought to meet the situation by calling additional evidence, before it closed its case, first from the landlord of 182 Devon Street as to the frequency of the appellant’s occupation of that dwelling and second, a video surveillance photograph of the appellant taken mid morning of 20 December 2001 outside a bank in New Plymouth’s main street.  Counsel for the appellant submitted that Ms Bennett’s evidence was not alibi evidence and he invoked the decision of this Court in R v Stephens [1997] 3 NZLR 716.

[9]        The Judge concluded his ruling on the issue in these terms:

I am of the view that although the counts in the indictment do not allege specific presence by the accused at a specified time or place as is the case with many criminal charges, the deposition statements nonetheless make it clear that the Crown was inevitably relying on inferences and something of a continuum.  There is an obvious interrelationship between manufacturing methamphetamine, possession, possession of precursor substances, and possession of equipment capable of being used in the manufacture of methamphetamine.  That aspect, plus the common ground relating to the accused’s whereabouts in the three days prior to 29 December 2001, in my judgment should have alerted both counsel to the fact that specificity of time and place was not necessarily centre-stage.  What is centre-stage is the element of control.

In all the circumstances I consider that the evidence which Mr Laurenson is contemplating calling can properly be categorised as alibi evidence.  It is evidence which tends to show that for substantial and critical periods the accused was absent from Taranaki.  In my view an alibi notice should have been given.

Should counsel for the accused wish to call the witness, however, I will in the interests of justice grant leave under s367A(1) for that alibi evidence being called.  But I will also permit the Crown, if it so desires, to call rebuttal evidence of the type it has already intimated.

That is my ruling.

[10]     Shortly afterwards the Crown closed its case and the defence elected not to call evidence.

Grounds of appeal and argument for appellant

[11]     The case for the appellant is that the Judge erred in law in categorising the proposed evidence of Ms Bennett as alibi evidence and in categorising the Crown’s intended evidence as rebuttal evidence.  Counsel submitted that the Judge’s rulings in this respect induced the appellant not to call the evidence of Ms Bennett and that has occasioned a miscarriage of justice such as to warrant the quashing of the convictions.

[12]     Counsel submitted that in respect of count 1, which specified a date “on or about 29 December 2001”, the evidence of Ms Bennett was not sufficiently proximate to constitute an alibi.  In respect of the other counts in the indictment the particulars as to time and place, being “between the 29th day of December 2000 and the 29th day of December 2001 in New Zealand”, meant that evidence would not be in the nature of alibi unless it tended to show that the appellant was outside New Zealand continuously for the specified period of one year.

[13]     Since no alibi in terms of s367A of the Crimes Act was being advanced, the evidence which the Crown said it wished to call was not in the nature of permissible rebutting evidence.  The fact that such proposed evidence could have been called upon at that point in the trial indicated that its relevance was known and its need was foreseeable.  And the same reasons which led the trial Judge to decline leave to the Crown to lead evidence in connection with the photograph albums, diary and invitations, indicated that the additional evidence would not have been and ought not have been permitted if the Judge had not erred in relation to Notice of Alibi.

[14]     The appellant seeks to rely on an affidavit from trial counsel deposing that the purpose of Ms Bennett’s intended evidence was not to establish an alibi but to support a submission that it would be unlikely that the appellant would have left significant amounts of drugs in New Plymouth when he was primarily resident in Auckland; and particularly so when the estranged partner had access to the Devon Street dwelling.  The Judge’s ruling allowed further evidence from the Crown relating to the appellant’s presence in New Plymouth.  Counsel deposed:

This ruling was critical in the defence’s decision not to call Ms Bennett’s evidence.  Had the presiding Judge ruled that the evidence was not alibi evidence and thus the Crown would not be entitled to call rebuttal evidence then it is fair to say that the defence would have elected to call Ms Bennett to give evidence.

Crown arguments on appeal

[15]     Having regard to the authorities to which we advert below, the Crown accepted that Ms Bennett’s proposed evidence was not in the nature of alibi.  In respect of count 1, although evidence was brought out in cross-examination of a Crown witness that the appellant had been in New Plymouth in December 2001 visiting the daughter of him and his estranged partner in hospital, the Crown accepted that this was too remote in time to constitute an alibi in respect of an offence alleged to have occurred “on or about 29 December 2001”.  The Crown also accepted that in relation to the other counts alibi evidence would need to show that the appellant had been living outside New Zealand for a year rather than having spent two months in Auckland during part of the year.

[16]     However, in the Crown’s submission, the Judge’s error was of no real consequence.

[17]     As to the Judge’s ruling that evidence by the landlord in respect of the surveillance photograph could be led in rebuttal, it was submitted that the proposed evidence would have been permissible even though an alibi notice was not required, if Ms Bennett had in fact given evidence.  Detective Ashton had, for example, testified that when she questioned the appellant a few days after the searches he gave his address as 182 Devon Street East and there was nothing to indicate to the Crown that the appellant was residing out of New Plymouth rather than simply being away from it.  In any event, the evidence was not led by the Crown because none was led on behalf of the appellant.

Discussion

[18]     In R v. Montgomerie CA36/03, 4 August 2003, this Court recently considered whether a Notice of Alibi was required by s367A of the Crimes Act when an accused charged with cultivating cannabis at Great Barrier Island “on or about 18 February 2000” led evidence that he was living in Auckland from August 1999 to February 2000 and had arrived back on Great Barrier Island only a couple of days before the cannabis plants were found.  His evidence was:

I was in Auckland most of that time – I think I came back a couple of times during that period but only for a day or something, you know, but prior to that particular incident I hadn’t been back there for a couple of weeks, week and a half, couple of weeks, three weeks something like that, you know…But I’m not using that alibi I’m not going for an alibi.

[19]     The purpose of such evidence was to reduce the likelihood of involvement with the developing cannabis plants rather than to show that he could not have been involved in any cultivation because he was elsewhere at the time.  Counsel for the Crown and the trial Judge were critical of Mr Montgomerie because he had not given an alibi notice.  By reason of the unwarranted criticism and its likely impact on the verdict a new trial was ordered.

[20]     In its reasons allowing Mr Montgomerie’s appeal this Court cited the following passage from R v Stephens [1997] CRNZ 308 at p313, which the Judge in the present case also cited in his reasons:

Section 367A is precisely worded and, though in our view the section can have application where a continuing offence is charged with reference to conduct at a specified address or within a particular locality, it does not require an alibi notice except when the alibi relates to the whereabouts of the accused at the time of the alleged commission of the offence. We reject the Crown's submission that it is enough to bring the requirements of the section into play that the time to which the alibi relates is proximate to the time of the offence and covers an event which is directly probative of the prosecution case. At the time Parliament enacted s 367A there was considerable concern about interfering with the traditional procedure in criminal trials whereby accused persons were not obliged to disclose their defence in advance of the trial. The requirement that an accused notify particulars of any defence of alibi or face forfeiture of the right to adduce evidence in support of that defence was a carefully crafted exception to that procedure. The section therefore should not be given an interpretation which substantially departs from the words chosen by Parliament. The "time of [the] alleged commission" of the offence will naturally encompass the period immediately before and after the offending, eg when robbers are going to and fleeing from the scene of the crime, but it will not cover remoter periods even though events which then occurred have significance in the case against the accused.

[21]     The Judge in the present case was wrong, therefore, to hold that Ms Bennett’s evidence was in the nature of alibi so as to require a notice and that led him erroneously to rule that the further evidence for the Crown could be led by way of rebuttal if Ms Bennett’s evidence were given.  This raises the issue whether the errors have occasioned a miscarriage of justice; if so, there is an issue whether the appeal should nevertheless be dismissed pursuant to the proviso to s385(1) on the basis that no substantial miscarriage of justice has actually occurred.

[22]     The consequences for the appellant of the Judge’s rulings were that the evidence of Ms Bennett was not led.  Having regard to its intended purpose, namely to support a submission of a reduced likelihood that the appellant was criminally implicated with the drugs and paraphernalia discovered at the dwelling which he rented and the dwelling where his estranged partner’s mother lived, the possible effect of such evidence needs to be examined in the context of the case as a whole.  The nature of the incriminating goods and their location was such that the offender was able to conceal incriminating material in the interstices of two dwellings with which the appellant was so closely associated.  That facility of access and the conduct occurred in a context where some of the paraphernalia bore the appellant’s fingerprints, recipes for drug manufacture were concealed in a magazine in the lounge of his dwelling and the appellant was accustomed to receiving and storing on a laptop computer kept at the dwelling of his partner’s mother, e-mails and other data relating to the manufacture of Methamphetamine.  Notwithstanding Ms Bennett’s proposed evidence it could not be said that the appellant was excluded as the offender by reason of absence from New Plymouth to the extent her testimony may have indicated.  In our view, Ms Bennett’s evidence would not have made the least dent in a very strong Crown case.  In any event, an evidential basis for the intended submission was laid in the course of cross-examination of the mother of the appellant’s partner, who accepted that she knew the appellant was staying in Auckland at the time the child of the relationship was in hospital, that is in December 2001.  Nor can the hypothesis of Ms Bennett’s being called to support the appellant’s case, to the limited extent which has been indicated, be considered without assuming also the vulnerability of that case to obvious lines of potential Crown cross-examination in connection with opportunities for the appellant to be out of Auckland when he was not in her sight. 

[23]     We do not doubt that the appellant would have been convicted even if Ms Bennett’s evidence had been led, whether or not the so-called rebuttal evidence by the Crown had been adduced.  As to the latter, we accept the Crown’s argument that such evidence could have been permissible by way of rebuttal in any event.

[24]     In the result, we hold that no substantial miscarriage of justice, if any, has actually occurred and the appeals against conviction and sentence are dismissed.

Solicitors:
Crown Solicitors, Auckland