The Queen v Trevor Miimetua Browne
[2002] NZCA 182
•30 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 141/02 |
THE QUEEN
V
TREVOR MIIMETUA BROWNE
| Hearing: | 30 July 2002 |
| Coram: | Anderson J Baragwanath J Panckhurst J |
| Appearances: | M J Faleauto for Appellant K Raftery for Crown |
| Judgment: | 30 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the appeal
The appellant was tried before a District Court Judge and jury on an indictment alleging possession of the Class C controlled drug cannabis plant for the purpose of sale and knowingly permitting premises to be used for the purpose of the commission of an offence against the Misuse of Drugs Act, namely the sale of cannabis. He was acquitted on the first count but convicted on the second and appeals against conviction accordingly.
The Crown case was that cannabis tinnies were sold by various people from a two-storey house rented to the appellant and his de facto wife. Police searches on three occasions revealed cannabis, cut foils, and persons involved in sale in the lower storey of the premises. The Crown alleged that the appellant knowingly permitted that activity and it sought to prove the same by showing the existence of the appellant’s tenancy and the revelations of the Police searches. As part of its case that substances located during the search were cannabis the Crown produced, through a Police officer, four certificates of analysis created for the purposes of s31 of the Misuse of Drugs Act 1975.
The appellant’s case is that the certificates were inadmissible because evidence was not adduced by the Crown proving compliance with s31(3), which provides as follows:
(3) A certificate referred to in subsection (2) of this section shall be admissible in evidence only if—
(a) At least 7 clear days before the hearing at which the certificate is tendered, a copy of that certificate is served, by or on behalf of the prosecutor, on the defendant, and the defendant is at the same time informed in writing that the prosecutor does not propose to call the person who made the analysis as a witness at the hearing; and
(b) The defendant does not, by notice in writing given to the prosecutor at least 3 clear days before the hearing, require the person who made the analysis to be called by the prosecutor as a witness at the hearing.
Counsel for the appellant invoked the decision of the High Court in Free v Police (1986) 2 CRNZ 298 where a conviction for possession of cannabis was quashed and the information remitted to the District Court for rehearing in circumstances where proof that two alleged “roaches” were cannabis was crucially dependent upon the admissibility of analyst’s certificates and where evidence had not been led proving conformity with s31(3) of the Misuse of Drugs Act.
It was submitted by the respondent that it is not open to the appellant to take that point in view of the conduct of the trial.
Conduct of the trial
Counsel for the Crown opened to the jury that he could tell them, with the consent of defence counsel, that the substance in question was cannabis. The transcript of his remarks is as follows:
MR DEAN: I should perhaps tell you at this point members of the jury, that there’s no dispute in this case, and I say this with the consent of my learned friend, there’s no dispute in this case that the substance found was cannabis plant material. You will have given as presented to you during the course of the case in the form of certificates from ESR, the organisation that analyses substances such as these, you will have certificates from the organisation presented to you, giving you precise weights of the various amounts of cannabis and various tinnies that were found at this address on these three occasions. But I can say to you at this point that there’s no dispute that the substance found was indeed cannabis plant material. This is the substance found in these cannabis tinnies on the three searches, or the occasion that these three searches were conducted.
Counsel for the appellant took no issue with that statement. Evidence was then led from various Crown witnesses who adverted to “cannabis” and “tinnies” and were even cross-examined on behalf of the defence in terms indicating acceptance of the nature of the material in question. One could refer, for example, to the following portions of the evidence of Constable M Beddeck, under cross-examination by the defence:
Well I won’t labour the point, but Junior Vinarere was charged with possession of cannabis for supply as a result of cannabis found on those premises on that occasion, wasn’t he?…Yes.
And he pleaded guilty didn’t he?…I believe so, I can’t recall.
Now cannabis tinnies were found outside in a car weren’t they?…Yes.
…
She [Victoria Suea] was located closest to the cannabis and you knew she was the girlfriend of Junior Vinarere…
Parts of the cross-examination by the defence of Constable De Wattiguar, took the following form:
Constable, with respect to what amounts of cannabis was Mr Vinarere charged?…Unspecified weight, three cannabis foils.
Right. His girlfriend Victoria Veronica Suea was found upstairs next to or close to large stashes of cannabis. Whose decision was it to charge Mr Vinarere only with the cannabis found on him?…That was my decision.
The certificates of analysis in issue were produced without objection and in conjunction with another exhibit, prepared by Detective Sergeant Simmons referred to as a “reference table”. That table correlated relevant dates, places where cannabis was located and by whom, the ESR number in respect of the certificates of analysis, the number of tinnies located at particular points and the weight of them in terms of the ESR analysis certificates. Counsel for the Crown had copies of the reference table for the members of the jury and defence counsel was agreeable to those copies being distributed to the jury. As defence counsel is recorded as saying: “By consent because it’s helpful to me and the jury Sir”.
At the end of the Crown case counsel for the appellant applied for his client to be discharged pursuant to s347 of the Crimes Act 1961 on the grounds that s31(3) of the Misuse of Drugs Act had not been complied with. Counsel for the Crown expressed concern to the trial Judge at the stance taken by the defence. He informed the Judge that he had discussed with defence counsel before opening whether there was an issue over the identity of the substance in question. Defence counsel told the Judge that he had not intended to make the concession understood by the Crown and that the requirements of s31(3) of the Misuse of Drugs Act were mandatory. This discussion, in the absence of the jury occurred immediately after the luncheon adjournment and in order to allow time for resolution of the difference the Judge released the jury until the following morning. He indicated that he could allow the Crown to call the analyst, a course clearly open to him in view of the principles elucidated in R v Nash [1958] NZLR 314. Alternatively he could discharge the jury on the basis that a misunderstanding had occurred and order a new trial. The latter prospect was of concern to defence counsel because the appellant had been in custody for some eight months and there would be a further delay pending a new trial. Eventually he took instructions from his client to withdraw the application pursuant to s347 of the Crimes Act and the trial proceeded the following day with his calling a single witness, the appellant’s sister.
In the course of his summing up the Judge directed the jury in the following terms:
Now in this case, there has not been any dispute that the drugs that were found in the tin wrapping, were in fact cannabis. That has not been in dispute. A certificate has been provided and we have not been taken down a path of any dispute as to the analysis of the substance. So that particular part is unlikely to trouble you very much.
Discussion
The statutory ground upon which the appeal must be founded is s385(1)(a) and (c) of the Crimes Act 1961. The relevant grounds are that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or, that on any ground there was a miscarriage of justice.
As to the first ground, we think there was abundant evidence to support the jury’s conclusion that the substances in question were in fact cannabis. Unlike the situation in Free v Police supra, the evidence, independently of the analyst certificates, that the contents of the tinnies and the nature of the plants was cannabis was sufficiently established by Police officers both in examination in chief and in cross-examination. The reference table alone, admitted by consent, provides a sufficient evidential basis for the jury’s conclusion.
As to the question whether there has been a miscarriage of justice we are equally unpersuaded to allow the appeal. As we have mentioned, the whole case, except for the belated bid for a discharge at the end of the Crown case, proceeded on a mutually acknowledged basis that the relevant material was cannabis. This is not a case of the Crown merely making assumptions to which the defence does not subscribe. Following a discussion with defence counsel the Crown opened on a specific basis that there was no dispute over the nature of the substance. Evidence was led and tested in terms of the apparent mutual assumption. A challenge at the end of the Crown case was withdrawn in the face of an indication that viva voce evidence could be called or a new trial ordered, and the learned trial Judge directed the jury in terms of what must now have been a mutual assumption. Indeed, not only did the defence not object in respect of the Crown’s opening or the production of the certificates, but also counsel, when asked by the trial Judge at the conclusion of the summing up whether there was anything he should have raised, defence counsel replied, “No thank you”. It is too late now for the appellant to try to revive a point which on any objective assessment had been specifically abandoned.
The appeal is entirely meritless and is dismissed accordingly.
Solicitors
Crown Solicitors, Auckland
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