White v Police
[2015] NZHC 1654
•15 July 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000066 [2015] NZHC 1654
BETWEEN HEATHER ANNE WHITE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 July 2015 Appearances:
T Aickin for the Appellant
B Hawes for the RespondentJudgment:
15 July 2015
JUDGMENT OF NATION J
Introduction
[1] The appellant has made application for leave to appeal certain rulings made by Judge Couch in relation to a Judge-alone trial in the District Court. I heard submissions from counsel on the morning of 15 July 2015. I am giving my judgment now as the trial is due to reconvene on 16 July 2015.
[2] The appellant’s home was searched and she was arrested on 23 January 2014. She faces one charge under the Misuse of Drugs Act 1975 of possession of morphine sulphate tablets, a Class B controlled drug, for supply. She faces a further charge of supplying that Class B controlled drug.
[3] On 10 September 2014, there was a pre-trial hearing over the admissibility of certain evidence. There was judgment in relation to that issue on 17 September
2014. An initial Judge-alone trial scheduled to begin on 2 March 2015 was
adjourned on that date. The trial was rescheduled to begin on 24 June 2015.
WHITE v POLICE [2015] NZHC 1654 [15 July 2015]
[4] At the commencement of that hearing, the Police sought an adjournment of the hearing because they had recently become aware there was going to be an issue as to whether tablets obtained from the appellant’s home did in fact contain morphine, a Class B controlled drug. The Judge agreed to give the Police an opportunity to call evidence in that regard. Defence counsel opposed the adjournment but, with the Judge indicating that such an adjournment would be permitted, she agreed to the trial beginning with it being adjourned on a part-heard basis to enable the Police to call the relevant evidence.
[5] The trial began on 24 June 2015 but was adjourned part-heard to resume on 1
July 2015.
[6] On 27 June 2015, the Police provided defence counsel with an Institute of Environmental Science and Research (ESR) analyst’s certificate confirming that the relevant tablets contained the Class B controlled drug morphine.
[7] When the trial resumed on 1 July 2015, defence counsel objected to the admission of the document that had been provided by ESR, firstly, on the basis it was not a certificate in the form required by s 31(2) Misuse of Drugs Act and, secondly, because it had not been provided to the defendant at least seven clear days before the hearing, as required by s 31(3). The Police then sought and were granted a further adjournment of the part-heard hearing to 16 July 2015 so that the document could be put in evidence. The Judge also ruled that the formal statement provided by ESR did qualify as a certificate for the purpose of s 31(2).
[8] On 7 July 2015, counsel for the appellant filed a notice of application for leave to appeal. That application indicated the rulings being appealed against were the rulings:
1.that the formal written statement from the ESR analyst was a certificate for the purposes of s 31; and
2.the notice provisions contained in s 31(3) would be complied with when the document was not provided to defence counsel until after the trial had commenced.
[9] On 14 July 2015, counsel filed an amended application for leave seeking to appeal three rulings:
1.The formal written statement from the ESR analyst was a certificate for the purposes of s 31.
2.The notice provisions in s 31(3) would be complied with where the trial had already commenced and the statement was not provided to defence counsel until after that date.
3. Agreeing to the case being adjourned to allow the substance found by
the Police at the appellant’s address to be analysed.
[10] At the hearing of this application on 15 July, Ms Aickin, counsel for the appellant, confirmed she was no longer seeking to argue that the Judge made an error in treating the formal statement from the ESR witness as a certificate for the purpose of s 31(2).
[11] It was also explained to me that, in the period after the part-heard trial was adjourned again on 1 July 2015, defence counsel had initially indicated she required the ESR analyst to be available for cross-examination. More recently, she had cancelled that request. Mr Hawes, for the Crown, confirmed the Police were nevertheless going to call the analyst as a witness to avoid having to rely on the formal statement or certificate which had been provided to the defence.
[12] The application for leave to appeal the second ruling is thus superfluous because the Police will not be relying on the formal statement or certificate to prove the tablets found at the address contained the Class B controlled drug morphine.
[13] Ms Aickin said her application for leave to appeal was really based on the proposition the Judge had made errors of law in allowing the trial to be adjourned on
two occasions to enable the prosecution to produce evidence to prove an essential element of the possession charge.
[14] In support of those submissions, she referred to the fact that the appellant was
69 years of age. She referred to the fact that, in a memorandum provided to the Court for a case management conference, she had indicated for the appellant the only fact which was being admitted in relation to the prosecution was that she was an occupant of the home where the drugs were found. Otherwise, she had indicated in that memorandum that the defendant was not saying what other facts were in issue. The memorandum thus put the prosecution on notice that they had to prove all essential elements of the charges which she was facing.
[15] Ms Aickin submitted the Judge made an error of law in permitting adjournments to enable the prosecution to essentially repair deficiencies in their case.
[16] Mr Hawes, for the Crown, submitted the decisions to allow the adjournments involved the exercise of a discretion and did not raise any alleged error of law.
[17] Mr Hawes referred to s 167 Criminal Procedure Act 2011, which states:
167 Power to adjourn
(1) Any proceeding may from time to time be adjourned by a judicial officer to a time and place then appointed.
[18] He also referred to s 113 of the Criminal Procedure Act, which states:
113 Adjourning trial for witness
(1) Subsection (2) applies if the court is of the opinion that the defendant is taken by surprise, in a manner likely to prejudice the defendant's defence, by the production of a prosecution witness without sufficient notice to the defendant.
(2) The court may, on the application of the defendant,—
(a) adjourn the trial; or
(b) discharge the jury and postpone the trial.
(3) If the court is of the opinion that a witness who is not called for the prosecution ought to be called, it may—
(a) require the prosecution to call the witness; and
(b) if the witness is not present, make an order for the attendance of the witness.
(4) In the case described in subsection (3), the court may—
(a) adjourn the trial; or
(b) if it is of the opinion that it would be in the interests of justice to do so, on the application of the defendant, discharge the jury and postpone the trial.
Discussion
[19] Section 296 of the Criminal Procedure Act permits a defendant to appeal to this Court on a question of law against a ruling made in the District Court. Pursuant to s 296(3), that question of law must arise in the determination of the charge.
[20] The authors of Adams on Criminal Law state:1
Consistent with the approach taken to section 78, an appeal on a question of law during a Judge-Alone trial should be “reserved for special cases where true questions of law are involved”.
[21] The authors further state:2
In most cases a decision by a Judge in the exercise of a discretion will not raise a question of law, but a decision as to whether the discretion exists or whether the conditions for its exercise are met, will.
[22] In H v Police, MacKenzie J followed the stance of the Court of Appeal in R v Lutomski in stating that the process of weighing of factors in the exercise of judicial discretion does not involve a question of law.3
[23] In Gray v Thom, Penlington J held that:4
1 Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA 296.03], citing Alexander v
Ministry of Agriculture and Fisheries HC Wellington, AP181/92, 4 March 1993.
2 At [CPA 296.07].
3 H v Police HC Wellington CRI-2005-485-11, 7 June 2005 at [30]; R v Lutomski CA211/02, 28
August 2002 at [14].
4 Gray v Thom [1997] NZFLR 328, (1997) 10 PRNZ 373 (HC) at 377.
… an appellate Court will be slow to interfere with the exercise of a discretion in relation to an adjournment. An adjournment will only be granted for good reason. The ultimate issue is the need to do justice between the parties; that is both parties. The question can be simply stated: is an adjournment expedient in the interests of justice?
[24] It was not submitted that the Judge’s decision was wrong because of any error he made as to the scope of his powers or as to the rights or obligations of the parties in relation to the proceedings before him.
[25] Given the appellant is no longer pursuing an argument over the form of the ESR statement and I do not need to rule on whether a certificate had to be served more than seven days before the hearing began, I do not consider the amended application for leave relates to an alleged error of law. On that basis, I decline leave to bring the application.
[26] Had I needed to deal with the issue as to when the certificate had to be served, I would have found that there was no error of law in permitting that certificate to be served more than seven days before the resumed hearing rather than more than seven days before the hearing first began.
[27] Section 31(3) states the relevant certificate 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 …; 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.
[emphasis added]
[28] The hearing at which the certificate was to be tendered was the resumed hearing on 16 July 2015, not the hearing that began on 24 June 2015. Service of the certificate on the appellant’s counsel more than seven days before the resumed hearing gave her time to consider whether she required the analyst to be called in accordance with her right to do so under s 31(3)(b).
[29] For completeness, I also indicate that, had I been willing to grant leave and to consider the issue relating to the adjournments on the merits, I would have dismissed the appeal.
[30] Although there is no transcript of the decision made on 24 June 2015 to proceed with the trial on a part-heard basis, there is agreement as to the circumstances in which that decision was made. Those circumstances are referred to in the Judge’s ruling of 1 July 2015. In that ruling, Judge Couch refers to embarking on the Judge-alone trial on Wednesday 24 June 2015. He says:5
At the outset of that trial, Ms Aickin for the defendant, made it clear that the defendant did not concede that the substance found in her possession was indeed morphine.
[31] In referring to the submissions made in relation to the later adjournment, the Judge recorded and discussed various points made by Ms Aickin on behalf of the defendant. He went on:
[15] Firstly, she noted that these matters have been before the Court since February 2014. She submitted that the police have had more than ample time to assemble their evidence and that, as the nature of the substance in the possession of the defendant was an essential element of the offences alleged, the police should have obtained and disclosed evidence of that fact long ago. This was an issue which was raised last week. That day, Ms Aickin submitted that the case could not possibly succeed without such evidence and opposed the granting of any leave to call evidence after that day. There was considerable discussion of this issue.
[16] What emerged was that, although the nature of the substance had not been conceded or admitted in the case management memorandum which was filed in April last year, the police had proceeded on the basis that the defendant herself had identified the substance as morphine in the course of recorded interviews. I have now seen those interviews and it is very clear that the defendant accepted that the substance was morphine. Ms Aickin put it to me that this may have been a mistaken belief. If that is so, the defendant may give evidence to that effect but whether she does so will be a matter for her.
[17] For the purposes of this issue, however, I think the police’s action was reasonable given the considerable expense involved in having such substances analysed for the purposes of the Misuse of Drugs Act 1975 and the responsibility of the police to not spend public money unnecessarily.
[18] It was common ground that this issue was only raised specifically on behalf of the defendant at the outset or shortly before the outset of the
5 Police v White [2015] NZDC 12317 at [2].
hearing last week. This occurred after Ms Aickin had requested and been given a day or two earlier an opportunity to examine the pills in question and had ascertained for herself that they bore no markings suggesting what they were. I infer from this that the decision to put this matter in issue was made very shortly before the trial commenced last week and that there was good reason for the police to believe that it was not going to be in issue.
[19] I concluded then and I repeat now that it seems to me in the interests of justice that the police be given an opportunity to present that evidence.
[32] In his decision of 24 June 2015, the Judge thus found that it was in the interests of justice for the hearing to be adjourned part-heard.
[33] Following that adjournment, the prosecution provided the analyst’s certificate but only on the Saturday before the trial was due to reconvene on Wednesday 1 July
2015 and when the Court and the prosecution knew that counsel for the appellant would be travelling to Wellington for a hearing in the Court of Appeal on 31 June
2015 and would not be back in Christchurch until the morning of 1 July 2015.
[34] On 1 July 2015, Ms Aickin and the appellant were not willing to allow the certificate to be produced as evidence to prove the tablets seized contained morphine. The admissibility of the formal statement was also challenged on the basis it did not constitute a certificate and because it had not been served more than seven days before the hearing. The prosecution then sought the further adjournment of the hearing to enable the requirements of s 31(3) to be met.
[35] The Judge’s ruling of 1 July 2015 indicates this request for an adjournment was strongly opposed by counsel for the appellant. The Judge dealt with arguments raised in the paragraphs I have already referred to. He also dealt with the submissions made in relation to the earlier adjournment of a hearing scheduled for 2
March 2015. He was mindful that, allowing for the adjournment, it would still be possible to complete the hearing a short time later on 16 July 2015. He did not consider the defendant would be prejudiced by this further delay or that it would breach her rights to have the charges determined without undue delay under the New Zealand Bill of Rights Act 1990.
[36] I am not persuaded there was anything unreasonable or wrong in the
conclusions the Judge came to. Given the appellant’s apparent willingness now to
accept the ESR analysis and that initially, in her interview with the Police, she seemed to accept that the relevant tablets found at her address were morphine sulphate tablets, the only prejudice she seems to have suffered as a result of the way the hearing has been adjourned is that she has not been able to take advantage of an omission in the evidence which the Police had to support the charges she faced.
[37] The Judge found that there was a reasonable explanation for the omission and that, in the interests of justice, the prosecution should have the opportunity to rectify that omission. There will be circumstances in which Judges do not give the prosecution the opportunity to fill gaps in the evidence in the way that has occurred here but the legislation permits a Judge to give the prosecution the opportunity to do this. Where people have allegedly offended, it is not just the defendant who has rights.
[38] The granting of adjournments involved the exercise of a discretion. To appeal successfully against an exercise of discretion, it must be shown that there
was: 6
1. error of law or principle;
2. taking account of irrelevant considerations;
3. failing to take account of a relevant consideration; or
4. a plainly wrong decision.
[39] I am satisfied there was no such error in this instance. [40] The application for leave to appeal is dismissed.
Solicitors:
Trudi Aickin, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
6 K v B [2010] NZSC 112.
0
0