The Queen v [ ] Whyman

[2001] NZCA 442

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RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND  CA252/01

THE QUEEN

V

[    ] WHYMAN

Hearing:  25 September 2001

Coram:  Blanchard J

Heron J Goddard J

Appearances:  G Gotlieb for Appellant M J Thomas for Crown

Judgment:  27 September 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]The appellant was convicted after a jury trial in the District Court at Auckland on a charge of being in possession of a Class B controlled drug, methamphetamine, for the purpose of supply. He appeals on the ground that no reasonable jury, properly directed, could have been satisfied of guilt beyond reasonable doubt. He complains also about certain aspects of the trial Judge’s summing up. He also

appeals his sentence of 18 months imprisonment contending that in all the circumstances it is manifestly excessive.

Facts

[2]On 30 March 2000 police executed a search warrant in relation to a stolen car at a residential address at 11 Orchid Place, Te Atatu South, the home of a Mr Stanic. The appellant was present when the police arrived, as was a Mr Faulkner. The police knocked on the door of the house which, after some delay, was answered by the appellant. On searching the property, the police found a motor vehicle in the garage. An examination of the vehicle revealed a plastic shopping bag hidden in the rear wheel arch. Inside this bag the police located a small quantity of cannabis plant material and two plastic bags containing 29.7 grams of the Class B controlled drug, methamphetamine. This quantity is below the level of the presumption of possession for supply (56 grams): s6(6)(f) of the Misuse of Drugs Act 1975.

[3]At the same time, the police located a methamphetamine laboratory in a small garden shed on the property. Various chemicals and laboratory equipment were found. Examination by the ESR showed that this equipment had been used in the manufacture of methamphetamine.

[4]Both Mr Stanic and the appellant were charged with attempting to manufacture methamphetamine and with possession of methamphetamine for the purpose of supply. The appellant was acquitted on the manufacturing charge but was convicted of possession for supply. A further defendant, Mr Johnson, who was the “cook”, was convicted on an attempted manufacturing charge. Mr Stanic was acquitted in all relevant respects.

[5]An application for a discharge under s347 of the Crimes Act 1961 was made after the verdict. In dismissing it the trial Judge said that the Crown case as put to the jury relied on individual sole, or joint possession or help or encouragement of the other individual’s possession. The Judge said that the following matters supported the jury’s decision:

[a]The appellant’s presence at the address and his admission to having been in the garage;

[b]The appellant’s delay in answering the door in response to the police arrival;

[c]The appellant falsely told the police that he was the only person present;

[d]Evidence supported an inference that the appellant had been in the garage when the police arrived; had entered the house through a sliding door linking the garage and kitchen and had then placed a chain across that sliding door before admitting the police to the premises.

[e]A set of scales was found in the garage;

[f]The appellant’s fingerprints were found on the inside of a glassware funnel located either in or on top of another car located in the same garage;

[g]116 plastic snaplock bags were found in a drawer in the kitchen. They were very similar to the bags in which the methamphetamine was found in the car.

[6]The Judge also commented that by its verdict the jury, who had seen and heard the appellant give evidence, must have rejected his evidence.

Appeal against conviction – submissions

[7]Counsel for the appellant, Mr Gotlieb, submitted that the appellant has never denied having been in the garage. He said that the appellant went to the property on the day in question at the request of Mr Faulkner, a mutual friend of the appellant and Mr Stanic, who was doing maintenance on the property. Mr Faulkner asked the appellant to look in the garage for a certain motorcycle tool. During this search the appellant first saw a number of items used for methamphetamine manufacture and touched one of these. Concerned with what he had found, the appellant decided to go back inside the house to use the toilet and

call his wife to pick him up. Counsel submitted that the police arrived while the appellant was in the toilet, which, together with his difficulty in working the lock, explained the appellant’s delay in answering the door.

[8]It was Sergeant Ormond’s evidence that the appellant was asked whether “any other persons were present”, to which he indicated there were not. However, counsel for the appellant referred us to the appellant’s evidence that Sergeant Ormond had instead asked whether he “was the occupant of the house”. Counsel submitted that this explained the appellant’s negative response.

[9]Counsel submitted that the set of scales found in the garage along with a number of other items considered crucial in the Crown’s case against the appellant, was neither fingerprinted nor photographed and may have been confused with a similar set of scales found in the shed where the drugs were being manufactured. Similarly, in relation to the snaplock bags found in the kitchen drawers, counsel for the appellant submitted that there was no evidence which linked those bags with the appellant. Mr Gotlieb said that there were no fingerprints belonging to the appellant on either the plastic bags containing the methamphetamine, nor the stolen vehicle in which it was concealed. Further, every item pertaining remotely to methamphetamine production or possession was destroyed before defence counsel or defence experts could examine it in any detail.

[10]It was submitted also that, in the Crown’s opening, the jury had been invited to consider the charges against Mr Stanic and the appellant individually but subject to the notion of joint possession, or help or encouragement of the other’s possession. At closing, however, the Crown had changed tack and suggested to the jury that the appellant was now charged with possession for supply because he had been in the garage and was acting in concert with, and/or covering up for Mr Faulkner. This theory was presented, it was submitted, without the Crown having challenged either Mr Stanic or the appellant about the methamphetamine found in the car; and also without Mr Faulkner having ever been charged. Counsel submitted that, as the Crown’s case had always focused predominantly on the charge of attempting to manufacture, the Crown’s change in theory had been prejudicial to the appellant’s defence.

[11]Mr Gotlieb also argued that the Judge below failed properly to instruct the jury in his summing up. Counsel submitted that the following comments or questions had showed unwarranted and unbalanced attention to certain aspects of the appellant’s evidence. The Judge had posed questions for the jury:

[a]Why was the appellant “dropped off at the corner” of Orchid Place by his wife?

[b]“Why, if he was solely an innocent visitor to the property, did he consider it necessary to start to leave the property before being arrested?”

[c]“[W]hy did he lie to the police when he said he was the only one there?” [Emphasis added]

[12]Counsel submitted that the Judge failed to mention to the jury the defence’s explanations for each of those events. The appellant’s wife, Kim Henderson, had given evidence that the only reason she dropped the appellant off at the end of the road was because she was on her way to meet a friend. Ms Henderson said the road was short – the house in question was estimated to have been less than 20 metres from where she dropped the appellant - and that not turning into Orchid Place enabled her to continue straight ahead without inconvenience. In relation to leaving the property, the appellant had given evidence that he had believed he was free to go. No arrest had been made at the time. Regarding what the Judge described as the appellant’s “lie” to the police, the appellant had given evidence contradicting Sergeant Ormond concerning what question was asked of the appellant, as mentioned above. In any event, counsel submitted, the Judge should not have made this statement without a careful direction to the jury on the question of lies. The absence of any lies direction became a focus of the oral argument.

[13]Counsel accepted that, in relation to the Crown’s change in theory, the Judge did remind the jury that the defence was critical of the Crown. However, counsel submitted that the Judge failed to comment on how the Crown’s change of tack might have proved prejudicial to the appellant. Mr Gotlieb submitted that the Judge should have given a direction on the law of parties. As there was no

evidence proving that the appellant was a principal, counsel submitted that he must therefore have been convicted on the basis of intentionally helping Mr Faulkner.

[14]For the Crown, Ms Thomas submitted that the jury had been entitled to reject the appellant’s evidence and to draw available but unfavourable inferences from the facts. There had been, she said, sufficient Crown evidence for the jury to convict, as the Judge had indicated in his s347 ruling. There was the physical evidence of the fingerprint on the funnel in the garage and there were inferences which could be drawn from the appellant’s behaviour when the police arrived – that he was delaying their entry in order to give Mr Faulkner time to hide the methamphetamine in the wheel hub.

[15]Ms Thomas said there had been no unfairness. The jury had been made aware of the defence criticisms of police procedures, including the failure to fingerprint some items. The change in the Crown’s theory of the case had not “ambushed” Mr Whyman. In the way in which the matter was put in closing, the Crown was responding to defence criticisms that the trial was unfair because Mr Faulkner was not being tried, and that he was the guilty person. The Crown had suggested that the evidence pointed to Mr Faulkner and the appellant having been in the garage dividing up the drugs. This allegation could not have surprised the defence as the defence itself had suggested that Mr Faulkner was implicated. The jury had its attention drawn to the Crown’s change in theory about the identity of the person with whom the appellant had been sharing possession.

[16]As to the Judge’s directions, Ms Thomas pointed out that he was entitled to make comments and had told the jury in the usual way that it was for them to decide what evidence they would accept or reject and the weight to give to it and that they should ignore their perception of his views of evidence if it did not accord with their own. He had given a standard direction on the use to which an accused’s evidence could be put, which in the circumstances was an appropriate course.

[17]Ms Thomas conceded, however, - rightly in our view – that in the circumstances of the case, particularly when the Judge had referred to the

appellant’s answer about whether anyone else was present as a “lie”, a direction on lies should have been given.

[18]Counsel submitted, however, that a direction on parties was unnecessary because there was sufficient evidence to prove that the appellant was guilty as a principal. That is the way in which the Crown had closed its case. Despite its opening it had not in the end sought to prove that Mr Whyman was guilty as a secondary party.

Decision

[19]Although the Crown case on the possession charge was not especially strong, we agree with the trial Judge’s view on the s347 application that there was sufficient evidence to support a conviction. It was open to the jury to reject Mr Whyman’s explanations and to infer from the physical evidence and from his conduct when the police arrived that he and Mr Faulkner were together in possession of the methamphetamine found in the garage. The appellant admitted being in the garage and his fingerprints appeared on a funnel which had contained a precursor of methamphetamine. His conduct when the police arrived appeared suspicious, particularly if the jury concluded that he had been asked whether anyone else was present and had answered in the negative, when he must have known Mr Faulkner was there. Although the quantity of drug found was below the level of the presumption, in circumstances in which there was a methamphetamine factory on the property (albeit one with which the appellant must be taken to have had no involvement) and the methamphetamine and precursor substances came from four separate batches, it was entirely reasonable to conclude that possession of the drug was not for the purpose of personal use.

[20]Nor do we think that the Crown’s change of theory and the absence of a parties direction was prejudicial to the defence to this charge (although such direction undoubtedly should have been given in respect of the manufacturing charge in respect of Mr Whyman was acquitted). The defence took the line that it was  Mr Faulkner who was the guilty person. It cannot have surprised the defence when the Crown then adopted that approach and alleged that Mr Whyman was

jointly involved in the possession. We have perused a copy of the Crown’s closing address. Whilst the Crown maintained in respect of the manufacturing charge that the appellant could be found guilty either as a principal or as an accessory, it alleged in respect of the possession charge only that Mr Faulkner and Mr Whyman were both in possession of the drugs. In this respect the Judge’s recollection of the position in his s347 application ruling appears to be erroneous.

[21]We are, however, concerned by the absence of a lies direction, particularly when the Judge, by the way in which he framed his question for the jury to consider, appeared to be indicating a view that rejected Mr Whyman’s account of the conversation and characterised his response to the police officer as a lie. Because the Crown case was not a strong one and because the Crown was relying upon the inference to be drawn from Mr Whyman’s conduct when the police arrived, there is a very real possibility that the jury may have reasoned that Mr Whyman was lying about the presence of Mr Faulkner on the property in order to give Mr Faulkner time to conceal the drugs. It was important, therefore, that as well as being told that they had to consider the accounts of the conversation given by the police officer and the appellant and determine which version they accepted, the jury also be asked to consider the possibility that Mr Whyman’s lie (if such it was) resulted from the embarrassment of having found evidence of a methamphetamine operation on the property only a short time before the arrival of the police or whether he might have lied simply because he was confused or for some other reason. The standard lies direction, tailored to the situation, should have been given.

[22]We repeat again what this Court said in R v Manase (CA9/01, 28 June 2001) at para [20]:

Juries are entitled to be told what to make of lies and to be cautioned from concluding, once lies have been proved, that they should therefore find the case proved. They have to be warned on the authorities as to the possibility of there being other reasons for telling lies, preceded by the direction as to whether in fact what is alleged is a lie.

[23]We have concluded that in the absence of a lies direction on a critical element of the case, the jury’s verdict cannot be regarded as safe.

Result

[24]The appeal is allowed, the conviction quashed and an order made for a new trial.

Solicitors:

Isaac Koya, Auckland for Appellant Crown Law Office