Withey v The Queen

[2004] NZCA 223

IN THE COURT OF APPEAL OF NEW ZEALAND

CA469/03

THE QUEEN

v

CAROLE ANNE WITHEY

Hearing:1 September 2004

Coram:Anderson P
John Hansen J
Randerson J

Appearances:  C S Cull for Appellant

B H Dickey for Crown

Judgment:13 September 2004 

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

[1]     The appellant was convicted after trial in the District Court on a charge of possession of cannabis for supply.  She was sentenced to twelve months imprisonment with leave to apply for home detention.  She appeals against conviction on the sole ground that there has been a substantial miscarriage of justice arising from radical error by her trial counsel. 

[2]     Although the appellant raised a number of issues, the alleged errors by trial counsel were refined during the course of the argument to three principal allegations:

a)Failure by counsel to pursue inquiries about one Douglas Parkinson who was said to have lived at the appellant’s address at material times;

b)Failure by counsel to interview one Eileen Flay as a witness for the defence and to call her to give evidence;  and

c)Failure to give adequate advice to the appellant as to whether she should give evidence and failure to call her.

[3]     Affidavits were filed by the appellant, Ms Flay, and the appellant’s trial counsel, Mr C P Comeskey.  The affidavits of the appellant and Mr Comeskey were in conflict in a number of respects and each of them was cross‑examined before us.

The facts

[4]     At 8 am on Friday 11 October 2002, the police executed a search warrant at the appellant’s residential address in Auckland.  She was found to be the sole occupant of the property at the time and the police observed a strong cannabis aroma in the house.  One of the police officers, Detective McLeay, gave evidence that he asked the appellant if there were any drugs in the house.  Her initial reply was that there were no drugs.  However, when informed that a police drug dog would be brought to the house, she then replied that there were “a couple of ounces of cannabis in the kitchen cupboard”.  The appellant denies she made that statement.

[5]     The detective then opened a cupboard in the pantry and found a yellow Regency Duty Free bag.  Inside the Regency bag were a number of other bags.  One contained over 260 gm of loose cannabis and there were nine plastic Snaplock bags.  Seven of these contained one ounce of cannabis each and two had a further ounce between them.  In all, there was over 350 gm of cannabis, well in excess of the level required to trigger the presumption for supply under s 6(6)(e) of the Misuse of Drugs Act 1975.

[6]     Of particular interest was a Body Shop bag found within the Regency bag.  This contained one of the nine Snaplock bags and a Body Shop receipt dated 9 October 2002 timed at 3.42 pm, less than 48 hours before the police conducted the search.  The appellant’s fingerprint was found on the Body Shop bag.

[7]     Detective McLeay also located a handbag in the lounge which was found to contain a clear plastic bag with $1940 in cash within it.  The cash was made up of one $100 note, two $50 notes, 86 $20 notes and two $10 notes.  Also found in the handbag was another clear plastic bag with remnants of cannabis in it and further loose cash amounting to $270.  There is no dispute that the handbag belonged to the appellant.

[8]     Numerous other items of interest were found in other parts of the house including the appellant’s bedroom.  Another plastic bag with traces of cannabis plant was found under a chair in the lounge and a small set of scales was found tucked into the chair.  A blue cooler bag was found near the dining table containing a set of digital scales in a plastic bag.  The scales had remnants of cannabis material on them.  A black bag was found in the appellant’s bedroom containing a Snaplock bag with 143 gm of cannabis material in it.  Also located in the appellant’s bedroom were ten Snaplock bags of the same size as those found in the Regency bag.  In the kitchen, another plastic bag was found on the pantry shelf which contained a further 132 gm of loose cannabis plant material.  Remnants of cannabis plant were found on a table adjacent to the pantry where the Regency bag was found.  No drugs were found in the second bedroom in the house which the appellant later said had been occupied by Mr Parkinson.

[9]     Detective Nimmo gave evidence that the appellant was the only person present at the time of the search and that her motor vehicle was the only one in the driveway when he had driven past on several occasions prior to the execution of the search warrant.  Detective Nimmo stated in evidence that the appellant told him Ms Flay was a boarder but no mention was made of Mr Parkinson.  The detective accepted there were two men’s suits in a wardrobe in the second bedroom but he said the bedroom appeared unoccupied. 

[10]   When Detective Nimmo spoke to the appellant, she told him there were no drugs in the house.  Shortly afterwards she volunteered that she did have some cannabis there and admitted she had smoked it for 20 years.  She told the detective she had friends over the night before and they had smoked cannabis.  Detective Nimmo did not hear the conversation related by Detective McLeay about the “couple of ounces” in the kitchen cupboard.  When confronted with the cannabis found in the Regency bag, she denied it was hers and said she just had “a little bit of personal”.  When asked who it belonged to, she said it was a friend but declined to identify the person.  She said the electronic scales were for cooking but when it was pointed out they were covered with remnants of cannabis, she said she had used them for everything.  As to the money, the notes of evidence record the following discussion between the appellant and Detective Nimmo:

… that is my money to pay bills, I haven’t got a chance to get it to the bank, its my life savings in fact.  I said that money is simply process [sic] from selling ounces, she said no, I own all that money, it is my life savings, I said how much money is there, she said, about $2000, I got some on my credit card and some from the bank, that’s my benefit money.

[11]     She denied any knowledge of the other cannabis found in the house.

[12]     We pause here to observe that the evidence against the appellant was very strong, even overwhelming.  Not only were there substantial quantities of cannabis found but the fingerprint evidence linked the appellant directly to it.  The scales, the plastic bags containing one ounce quantities of cannabis, and the substantial sums of cash found in the appellant’s purse, strongly suggested the appellant was in possession of the drug for the purposes of supply.  Her initial denials to the police did not assist her and on the basis of Detective McLeay’s evidence (which we accept was disputed), she admitted knowledge of the cannabis found in the Regency bag.

The evidence before us

[13]     The appellant’s account in her affidavit filed in this court was that she had been away from her Auckland home for approximately a month prior to the execution of the search warrant.  She had been up north for a period and had then travelled to Rarotonga, returning to New Zealand on 5 October 2002, six days before the warrant was executed.  During 2002, two other people had been living at the address, Ms Flay and Mr Parkinson.  She agreed neither were present when the warrant was executed.  She gave the police correspondence addressed to Mr Parkinson at her residence.  She also supplied Detective Nimmo with documentation she said supported the withdrawal of cash from cash machines to explain the money found in her purse.  She added that she had received rent from Ms Flay the evening before and that accounted for part of the money.

[14]     The appellant said that she had attended at court whenever required to do so but claimed she had great difficulty contacting Mr Comeskey to discuss her case.  She prepared a written brief for Mr Comeskey but said she was not given the opportunity to discuss this with him.

[15]     She said she told Mr Comeskey that Ms Flay was willing to give evidence but maintained that Mr Comeskey did not give her any advice about contacting Ms Flay or arranging her attendance at court.  She said she was expecting to give evidence at trial and wished to give evidence about the other persons in the house.  She intended to deny the comments allegedly made to the police and to deny that the items found belonged to her.  She maintained they belonged to Mr Parkinson and she wanted to give evidence about his conduct and his continued access to the property.  She stated that Mr Comeskey did not at any stage discuss the court process nor the giving of evidence.  She said it was not until during the trial that Mr Comeskey told her in the courtroom that he did not want her to give evidence.  She did not do so and said she was found guilty without being given an opportunity to present her defence.

[16]     In her brief of evidence which she supplied to Mr Comeskey prior to trial, the appellant referred to the fact that Mr Parkinson had been living at the house but stated she had been trying to get rid of him for some time.  She said she understood Mr Parkinson had warrants for his arrest and she understood he had appeared in the District Court on criminal charges shortly after the raid at her home.  She maintained there was a substantial quantity of men’s clothing in her home which she said the police had ignored.  She said Ms Flay had moved into the home about a month prior to the execution of the warrant but was only staying at night from Monday to Thursday.  She explained her movements prior to the time of the arrest and stated that:

… I certainly do not recall mentioning anything about ounces although I knew my friends had a smoke the night before, which I did not.

[17]     She also spoke about the cash found in her purse and the documentation she had to support its source.  She went on to state that she suspected at the time the police came to her property that there “may have been some dregs in the house, but certainly not what they found”.  She added that there were eight keys to the house and she thought someone had “left that stuff there to collect but was thwarted by myself or others getting there unexpectedly”.

[18]     It is common ground that the police advised at an early stage that they would accept a plea of guilty to simple possession.  Although she did not refer to the possibility of pleading guilty in her affidavit, the appellant’s brief stated:

It would have been easier to plead guilty to the possession as offered but did not think it was fair to be forced to please [sic] for what was not mine in order to avoid the stress of a trial.

[19]     It is significant that at no time has the appellant explained her fingerprint being found on the Body Shop bag, or how fragments of cannabis plant material were found on her kitchen scales.  Nor has she provided any explanation as to the black bag containing a substantial quantity of cannabis material and Snaplock bags found in her bedroom.  We also note that in her brief of evidence, the appellant did not assert that the cannabis belonged to Mr Parkinson or Ms Flay.  Rather, her approach seems to have been that others had access to the property and that someone else must have left it there.

[20]     Mr Comeskey disputed much of the appellant’s evidence.  He stated he had advised the appellant from the outset that the case against her was strong and raised with the police the possibility of the appellant pleading to a charge of simple possession of cannabis.  Detective Nimmo indicated he was willing to accept a plea on a charge of simple possession and Mr Comeskey conveyed that to the appellant.  He believed that the appellant had indicated her willingness to plead guilty to simple possession and he so advised Detective Nimmo.  However, Mr Comeskey said that on the day of depositions, 23 May 2003, the appellant told him she would not plead to the possession charge as her application before the Real Estate Institute was not finalised and she did not wish to have a conviction interfering with that application.

[21]     Mr Comeskey denied there were any difficulties in the appellant contacting him and maintained that he had discussed the case on a number of occasions with her.  He had asked her to prepare a written brief as he did with all clients he regarded as articulate and capable of expressing themselves adequately in writing.  His evidence was that he had informed the appellant of her stand‑by trial date for the week of 25 August and she was aware, at least from callover on Monday 25 August, that the trial was likely to commence on the Thursday of that week, 28 August. 

[22]     Mr Comeskey said he had always made it clear that the appellant should arrange for Ms Flay to contact him by telephone or to come to see to see him at his chambers. 

[23]     As to the appellant giving evidence, he said his advice throughout had been that she should not give evidence.  He advised her against that course because he believed she would have difficulties in explaining the Regency bag, the fingerprint, her admissions to the police, and the fact that drugs were not found in the second bedroom.  His recollection was that the appellant did not wish to give evidence.  Although he did not have any record of a written instruction from the appellant on the issue of giving evidence, he said he obtained her confirmation in court at the end of the Crown case that she did not wish to give evidence.  He advised the court accordingly.

[24]     Significantly, Mr Comeskey produced an Email from the appellant dated 31 August 2003 after her conviction.  In the Email, the appellant said she was shocked about the outcome and was going to appeal.  She was critical of Mr Comeskey and raised the issue of Ms Flay having been willing to give evidence.  She stated amongst other things:

I obviously would have been better to be given the opportunity to defend myself and otherwise to say nothing and let Eileen [Ms Flay] say it for me.  …

[25]     This statement by the appellant supports Ms Comeskey’s evidence that she did not wish to give evidence and her acceptance of his advice that it would not have been in her best interests to have done so. 

[26]     The appellant filed a reply affidavit.  She confirmed she had received Mr Comeskey’s file on 14 August 2003.  The file contained all the police evidence against her so she was well aware of the case she had to answer.  She claimed that she did wish to give evidence but stopped short of asserting that she specifically instructed Mr Comeskey to call her for that purpose.  On the other hand, she denied instructing Mr Comeskey that she did not wish to give evidence.  In that respect, she asserted she was not given any adequate advice. 

[27]     As to the possibility of a plea to simple possession, she was aware of the possibility of pleading guilty to that charge.  She stated:

I was stressed and ill at the time and told Mr Comeskey that although the cannabis was not mine I might accept a small amount was and I would plead guilty to same to get it over with and get on with my life.

[28]     In her evidence before us, the appellant confirmed that she told Mr Comeskey she would plead guilty to simple possession of cannabis.  Despite that, she was proposing to say at trial that the cannabis was not hers (which, we observe, would have placed Mr Comeskey in a difficult position as counsel).  When questioned before us, the appellant denied Mr Comeskey’s assertion that she had changed her mind at depositions and instructed him that she would not plead.  Instead, she maintained that she would have pleaded guilty to a charge of simple possession right up to the commencement of the trial.

[29]     We find it impossible to accept the appellant’s evidence on this point.  It is not disputed on the evidence that the police offered to accept a plea of simple possession and the appellant admits she instructed Mr Comeskey prior to depositions that she would plead guilty to that charge.  We are satisfied that Mr Comeskey correctly perceived that the police case against his client for possession of cannabis for supply was very substantial.  A plea of guilty to the lesser charge would have been a very successful outcome in the circumstances.  It is impossible to suppose that the matter would not have proceeded on this basis either before or at the time of depositions if the appellant wished to take that course.  We accept Mr Comeskey’s evidence that the appellant advised him around the time of depositions that she would not enter a plea of guilty to simple possession, at least at that stage.  We are also satisfied that if the appellant had wished to plead guilty to the lesser charge prior to trial, the police would likely have accepted such a plea, given their earlier offer to do so.  We conclude on this issue that the appellant continued to instruct Mr Comeskey she wished to deny the charge and proceed to trial. 

Relevant principles

[30]   In R v Pointon (1984) 1 CRNZ 348, this court held:

… it is established that rare cases do arise in which it becomes necessary to hold that in the conduct of the defence there have been mistakes so radical;  that the ground (miscarriage of justice) specified in s 385(1)(c) of the Crimes Act 1961 is made out:  see R v Horsfall [1981] 1 NZLR 116, 123. Such cases do not turn on whether or not there has been negligence. That is not the issue. Miscalculations can occur for which counsel, perhaps making tactical decisions under pressure, is not necessarily to be criticised. Nevertheless they can force an appellate court to treat the trial as unsatisfactory.

[31]   This court reviewed the test in R v Kaki (CA394/92, 29 March 1993):

… it will only be in the exceptional case that mistakes in the conduct of the defence will be so radical as to lead to the conclusion that a miscarriage of justice has been established.  The court must be on guard against the perhaps natural tendency of accused persons to attribute their conviction not to the crime committed but to the incompetence of counsel:  R v Pointon (1984) 1 CRNZ 348, 352.  Thus a mere mistake in tactics will not suffice.  Nor is it enough that other counsel might have acted differently or indeed more competently.  What must be shown is that the mistake or failure could well have had a significant prejudicial effect on the outcome of the trial:  R v Horsfall [1981] 1 NZLR 116, 123.

[32]   As well as the making of “radical mistakes”, a second basis on which a miscarriage of justice can be asserted is that counsel failed to follow clear instructions given by the client.  In R v Accused (1998) 15 CRNZ 611 this court distinguished between clearly given instructions and the mere expression of views:

A counsel does not have the right to disregard instructions from his or her client.  See R v McLoughlin [1985] 1 NZLR 106, 107; (1984) 1 CRNZ 215, 216 (CA). If appropriate advice has been given to the client, counsel’s proper course is either to act on his or her instructions or to withdraw from the case. But the duty of counsel to follow a client’s instructions must necessarily depend upon the way in which those instructions are expressed and conveyed. See R v Lavery (1998) 15 CRNZ 611, 614.  It must be clear that the instructions were not simply an expression of the client’s views on a particular matter but were intended to be directions to be observed and implemented by counsel.  They are then to be followed irrespective whether they would or might rebound to the client’s disadvantage.  It is not enough, for example, for an accused to tell trial counsel that he or she “wants” or “wishes” a particular witness to be called.  See R v Byford unreported 25 June 1993, CA74/93 at p 3.  Moreover, once it has been established that counsel failed to follow the client’s instructions, the appellant must show that the failure led to a miscarriage of justice.  See R v Reti unreported, 22 November 1991, CA396/91 at p 9 et seq.

[33]   The authorities show that even if there are found to have been radical mistakes made or a failure to follow instructions, it must be shown that this has led to a substantial miscarriage of justice, ie, that the result may well have been different had counsel acted properly.

This case

Mr Parkinson

[34]     We are not persuaded there was any radical error by counsel in relation to Mr Parkinson.  The submission on the appellant’s behalf was that Mr Comeskey should have made inquiries about Mr Parkinson so that documentation could have been produced to the jury in an admissible form about his continued connection with the property.  Ms Cull for the appellant submitted that the appellant had instructed Mr Comeskey to pursue this issue, referring to an Email sent by the appellant to Mr Comeskey after she had noticed his name on a court list. 

[35]     Mr Comeskey accepted that he had not made any inquiries about Mr Parkinson, explaining that he had no clear instruction that Mr Parkinson owned the drugs and having received only the advice from the appellant that Mr Parkinson’s name had been seen on a court list.  He added that the appellant had asked him to find Mr Parkinson in an attempt to recover money which he owed to her.  In that respect, Mr Comeskey had a written note of advice from the appellant that Mr Parkinson had left a couple of months before the search warrant was executed and had been there for about nine months before that.  Mr Parkinson owed the appellant $1200.

[36]     We consider it most unlikely that further inquiries about Mr Parkinson would have assisted the appellant’s defence.  First, in her brief of evidence the appellant did not assert that the drugs belonged to Mr Parkinson.  Secondly, on her instructions to Mr Comeskey (as recorded by him in writing) he had not been at the property for about two months prior to the execution of the search warrant.  Thirdly, Ms Flay has deposed that she had not seen Mr Parkinson for the six day period between the appellant’s return to New Zealand on 5 October 2002 and the date of the police visit to the appellant’s home on 11 October.  Fourthly, the police did not find drugs in the room which had previously been occupied by Mr Parkinson and there was police evidence that the room appeared to be unoccupied.  Finally, if Mr Parkinson owed the appellant $1200 as she asserted, it is unlikely he would have returned to the property.

[37]     We conclude that any failure by Mr Comeskey to pursue inquiries about Mr Parkinson would not have had any material bearing on the outcome of the appellant’s case.

Ms Flay

[38]     It is unnecessary for us to resolve the factual dispute about the arrangements to call Ms Flay.  We observe, however, that the appellant is a woman of intelligence and she must have appreciated the need to have Ms Flay present and available to give evidence at the time of her trial, even if Mr Comeskey had not explained this to her.  If, as she asserted, Ms Flay was able to give helpful evidence and was available, we cannot accept that the appellant would not have made arrangements to have her at the court so Mr Comeskey could brief her evidence and call her as necessary. 

[39]     Although Mr Comeskey accepted he did not pursue inquiries with Ms Flay, we do not consider his failure to do so had any material effect on the outcome of the trial.  Realistically, there were only three persons who might possibly have owned the cannabis.  On Ms Flay’s own evidence, the cannabis was unlikely to have belonged to Mr Parkinson because he had not been at the property after the appellant’s return.  In her affidavit, Ms Flay does not suggest who owned the cannabis.  Unless Ms Flay admitted the cannabis was hers (which she does not suggest and she would have been very unlikely to do) that would have left the appellant as the sole remaining candidate for ownership of the cannabis. 

[40]     If Ms Flay had given evidence, she would have been able to confirm that the appellant had been away from the address for several weeks and had returned from Rarotonga on 5 October.  However, given the existence of the Regency duty free bag and the appellant’s fingerprint on the Body Shop bag found within it, this evidence would have tended to support the Crown case.  It would have enabled the Crown to assert that the appellant had acquired the duty free bag on her return from Rarotonga.  That evidence would have strongly supported the Crown contention that the appellant had acquired the cannabis upon her return from overseas and that she (and possibly others) had been engaged in weighing and packing the cannabis into one ounce bags on the night before the police arrived at the address. 

[41]     Ms Flay would have been able to confirm that she had paid the appellant $700 for rent and other expenses on the day before the police search but we note that if Ms Flay had given evidence, she would have been open to cross‑examination along the lines that she had bought cannabis from the appellant and that the cash found represented the purchase price.  We add that we found aspects of the explanations the appellant gave for the cash found in her bag to be somewhat confusing.  On the one hand she told Detective Nimmo on the day of the police search that she had drawn the money out in cash to pay bills but on the other hand, she told him that she had not had the opportunity to get the money to the bank.  When questioned on that point before us, she explained that she intended going to separate banks in order to pay telephone and power bills in cash.  We find that explanation difficult to accept.

[42]     We conclude that calling Ms Flay would not have materially assisted the appellant’s case and could well have been detrimental to it.

Appellant not giving evidence

[43]     There is no doubt that the appellant was entitled to give evidence at her trial if she wished to do so.  We also accept Ms Cull’s submission that it is counsel’s task to advise an accused about the implications of giving or not giving evidence.  Ms Cull accepted there was no evidence that the appellant had specifically instructed Mr Comeskey that she wished to give evidence.  Rather, the complaint was that she did not have an adequate opportunity to make a properly informed choice on the issue. 

[44]     On the facts, we accept Mr Comeskey’s evidence that he advised the appellant it would be unwise for her to give evidence.  We also accept Mr Comeskey’s evidence (confirmed by the appellant’s Email to him after conviction) that the appellant did not wish to give evidence.  We reject her assertions made after the event that she had at all times wished to do so. 

[45]     In any event, Mr Comeskey’s advice to the appellant that she should not give evidence was undoubtedly soundly based.  For good reason, experienced members of the criminal bar commonly advise accused persons not to give evidence.  That is particularly the case where, as in the present case, the Crown has a strong case and it is unlikely that the accused will be able to provide any convincing explanation for key evidence adduced by the Crown.  The failure by the appellant to explain her fingerprint on the Body Shop bag and the cannabis material found on her kitchen scales are only two issues which she would have had to face in cross‑examination if she had given evidence.  She would also have had to explain the Regency duty free bag, the cannabis and Snaplock bags found in her room, and the cash found in her purse. 

[46]     Having seen and heard the appellant give evidence ourselves, we do not consider she would have made a convincing witness.  In cross‑examination by Mr Dickey for the Crown, she repeatedly failed to answer the questions put to her and we found her explanations to be glib and unpersuasive.

Conclusion

[47]     For the reasons given, we are not persuaded there was any radical error by counsel as alleged, nor that any miscarriage of justice has resulted.  The evidence against the appellant was overwhelming and while Mr Comeskey did the best he could to attack the Crown case at trial, a conviction was inevitable in the circumstances.

[48]     It follows that the appeal against conviction will be dismissed.  The appellant is currently on bail pending the determination of this appeal.  The sentence imposed on the appellant has been deferred under s 100 of the Sentencing Act 2002 pending the determination of her application for home detention.  Pursuant to s 65A(4) of the Bail Act 2000, we continue the grant of bail on the following conditions:

a)The appellant, within two weeks of the date of this decision, must apply for home detention in accordance with s 33(1) of the Parole Act 2002; 

b)The appellant must appear at any hearing of that application by the New Zealand Parole Board; 

c)The appellant must surrender herself to the Superintendent of the penal institution concerned at the expiry of the period of the deferral of her sentence being a period of two months from the date of this decision or the date on which the New Zealand Parole Board determines the application for home detention, whichever is the sooner;  and

d)The appellant must comply with any other conditions of her current bail.

Solicitors:

Crown Solicitor, Auckland