GREEN v R [2016] NZCA 196

GREEN v R [2016] NZCA 196 [12 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA209/2015[2016] NZCA 196BETWEEN DAKTA GREENAppellantAND THE QUEENRespondentHearing: 3 May 2016Court: Wild, Courtney and Gilbert JJCounsel: A G V Rogers for AppellantJ E L Carruthers for RespondentJudgment: 12 May 2016 at 3 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is also dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Following a trial before Judge Paul and a jury in the Auckland District Court, Mr Green was found guilty of possession of cannabis resin for the purpose of supply,1 possession of cannabis for the purpose of sale,2 and permitting premises to1 Misuse of Drugs Act 1975, s 6(1)(f).2 Section 6(1)(f).be used for the consumption of cannabis.3 He was convicted and sentenced by Judge Paul on 22 April 2015 to two years and four months' imprisonment on thecharge of possession of cannabis for the purpose of sale and concurrent terms of 12months' imprisonment for the other two offences.4[2] Mr Green appeals against his conviction, contending that there has been amiscarriage of justice because the Judge's directions to the jury not to engage ininternet searching were inadequate given the amount of prejudicial material about Mr Green that was readily accessible there. He also appeals against his sentence, arguing that it was manifestly excessive.Conviction appealBrief facts[3] Mr Green was released on parole on 13 June 2012 after serving a sentence for cannabis-related offending and was directed by the Department of Corrections to liveat the "Daktory", a converted warehouse in Auckland, where he previously lived.The Daktory is known as a place where cannabis can be purchased and consumed.[4] Police searched the premises on 21 June 2012 and found cannabis. As a result of this search, and earlier searches on 26 and 27 April 2012, a total of seven charges were laid against Mr Green and two others who were living at the address.[5] The charges against Mr Green related solely to what was found in the later search: cannabis found in butter, cheese and cookies in the kitchen area (count 3); two capsules containing cannabis oil located in the downstairs bar area (count 4); cannabis plant in glass jars in the downstairs bar area (count 5); and cannabis plant in a bag in the upstairs kitchen/dining area (count 6). Mr Green was also jointly charged with permitting the Daktory to be used for the consumption of cannabis (count 7).3 Section 12.4 R v Bower [2015] NZDC 8555.Pre-trial publicity[6] Mr Green has been successful in attracting significant publicity as a campaigner for cannabis law reform over many years. About a month before the trial commenced, on 15 December 2014, 3 News ran a story about a cannabis vending machine that the police were returning to Mr Green. This had been seized during a search of the Daktory on 22 March 2012 but the search was ruled to be unlawful.5 The television coverage included footage of police entry to the Daktory on 22 March 2012 in which one of the other defendants could be seen. It alsoshowed Mr Green talking about the Daktory and "the breaking of the law".6 This news item was removed from the TV3 website three days after it was broadcast.[7] The other two defendants applied for a stay based on this publicity, which they claimed had been solicited by Mr Green. The Judge declined this application and the trial went ahead as scheduled, commencing on 20 January 2015.7[8] Any search of "Dakta Green" or "Daktory" on Google or YouTube at that time would have revealed extensive information. The first six items that would have appeared on a Google search of "Dakta Green" at that time are illustrative:Cannabis club founder's sentence doubled | Stuff.co.nzwww.stuff.co.nz/national.../Cannabis-club-founders-sentence-doubledOctober 30, 2011 — The founder of New Zealand's first cannabis club,Dakta Green, has had his jail sentence more than doubled following an appeal by the Solicitor General.'Daktory' cannabis club owner jailed | Stuff.co.nzwww.stuff.co.nz/national/crime/.../Daktory-cannabis-club-owner-jailedJun 29, 2011 — Dakta Green, who ran the west Auckland club where cannabis could be bought and sold freely for more than 30 months, was found guilty on three cannabis Crown seeks longer sentence for Dakta Green | Stuff.co.nzwww.stuff.co.nz/national/.../Crown-seeks-longer-sentence-for-Dakta-GreenSeptember 26, 2011 — Dakta-Green, 61, formerly known as Ken Morgan, was jailed in June for eight months after being convicted of a representativecharge of selling cannabis Drug vending machine back with The Daktory club | Stuff.co.nzwww.stuff.co.nz/.../drug-vending-machine-back-with-the-daktory-club5 R v Van Trigt DC Auckland CRI-2012-090-2048, 6 October 2014.6 R v Bower [2015] NZDC 576 at [6].7 R v Bower, above n 6.Dec 15, 2014 — Today Cannabis law reform campaigner and Daktory founder Dakta Green drove his "Cannabus" to retrieve the "Dakta Vendor"from the Henderson Police Dakta in the house | Stuff.co.nzwww.stuff.co.nz/auckland/local-news/western-leader/...Dakta-in-the-houseDecember 4, 2009 — He calls himself Dakta Green. The 59-year-old has been jailed in California and New Zealand for cultivating cannabis but has no plans to change his ways.Cannabis Law Reform campaigner Dakta Green is out of jail www.radiolive.co.nz/Cannabis...Dakta-Green.../Default.aspxJun 13, 2012 — Cannabis Law reform Campaigner Dakta Green tellsRadioLIVE's Marcus Lush he'll continue to fight for the liberalisation of cannabis laws and will be back at Judge's directions in opening remarks to the jury[9] The Judge gave fairly standard directions to the jury at the outset of the trial. He emphasised the importance of listening carefully to the evidence presented in Court and deciding the case solely on the basis of that evidence. He instructed the jurors not to make their own enquiries about any aspect of the case, including by searching on the internet and he directed the jurors to ignore anything that they may have heard or read about the case outside the courtroom. He also instructed them not to discuss the case with anyone who was not on the jury and to discuss the case with other jurors only when all 12 were present:It goes without saying you decide the case on the basis of the evidencepresented in this Court. Please avoid irrelevancies. You decide this case on the evidence in this Court, which means you ignore everything else that is not evidence. This includes what you may have heard or read about this case in the media before trial, or anything you hear about it outside the courtroom. Do not make your own enquiries into what has happened here. Do not engage in Internet searches of either the witnesses or the events as they unfold. Simply try the case on what you hear in this courtroom. As I say, if you've heard anything or read anything about this case, orseen anything about this case, you put those matters entirely out of your minds. It is important you do not discuss this case with anybody outside your number, that is, outside your 12. What other people say is totallyirrelevant to your task, and to avoid being troubled by such information simply decline to discuss the case.I can tell you during the course of this trial I'm sure you'll make friendsamongst yourselves and perhaps go off to lunch together in twos and threes. Even in that situation you are not permitted to discuss the case. It is only when all 12 of you are present that you can do that. Now, should by any chance anybody approach you outside your number during the course of the trial and their approach to you gives you some cause for concern, please let me know through Madam Foreperson and I'll deal with it.Mr Green's case at trial[10] Mr Green did not attempt to conceal his obvious involvement with the Daktory. It would have been hopeless to attempt to do so. The Crown produced a photograph of a membership card with Dakta Green's name and photograph on itconfirming his membership of the Daktory. Nor did Mr Green dispute the fact that cannabis had been found at the Daktory during the police searches.[11] Mr Green's case was that there was no evidence to prove:(a) that he was involved in running the Daktory during the brief period between 13 and 21 June 2012 while he was living there as directed by the Department of Corrections; or(b) that he had any involvement with the drugs found there by the police during the June search.[12] Mr Green wished to prove that: he was not at the Daktory at the time of the earlier searches; the only relevant period he lived at the Daktory was between 13 June 2012 and 21 June 2012; and he had been required to live at the Daktory during that period by the Department of Corrections. To that end, on the day before the trial began, counsel then acting for Mr Green filed a notice of intention to offer hearsay statements to prove that Mr Green was released on parole on 12 June 2012 and directed to live at the Daktory. The documents he sought to produce were the release licence issued by the Department of Corrections pursuant to s 53 of the Parole Act 2002, the warrant for imprisonment relating to the earlier cannabis offending and a letter from the Mt Eden Correctional Facility to the Probation Service. These documents detailed the offences for which Mr Green had beenimprisoned, namely two offences of possessing cannabis plant for supply and one of permitting premises to be used for a cannabis offence, and the sentences imposed foreach resulting in an effective end sentence of one year and 11 months' imprisonment.[13] The Crown did not oppose the introduction of this hearsay evidence. However, the Judge was concerned about the prejudice to Mr Green of placingdocuments before the jury disclosing Mr Green's recent convictions for similar cannabis-related offending. The Judge therefore invited counsel to consider an agreed statement of facts to cover the matters Mr Green wished to prove. Accordingly, a memorandum of agreed facts was placed before the jury pursuant to s 9 of the Evidence Act 2006 as follows:1. On 12 June 2012, Mr Green was directed by the Department of Corrections to live at the address of [the Daktory].2. As part of the directions to Mr Green, he was prohibited from moving to another residential address unless the Department of Corrections allowed him to do so.3. On 15 June 2012, Mr Green signed an acknowledgement of his obligations regarding that address.[14] In his closing address to the jury, Mr Green's counsel acknowledged theabundant evidence to show that Mr Green had been associated with the Daktory in the past. However, he urged the jury to focus attention on whether there was any evidence to show that Mr Green was involved in running the Daktory during the brief period covered by the charges against him or that he had any connection with the drugs found by the police when they searched the premises on 21 June 2012:To be frank, if you look at photograph 121 in the big photo book, exhibit 9,you have there a membership card with Mr Green's photo and The Daktory and his membership of The Daktory. There's not been any doubt here. Mr Green was involved with the running of The Daktory back in November 2008 through to December 2011. That's clear on that card. That's obvious from that. The problem is that there's absolutely no evidenceto suggest that he had any further involvement since that time. Certainly no evidence that he was involved with running The Daktory in the 13th to the21st of June, the time when the Department of Corrections sent him there. It doesn't make any sense to suggest that that's a man that's going to beinvolved in the running of this operation, that's directed to be there by theDepartment of Corrections. ... There's a ton of evidence that this was a place used for cannabis and sales of cannabis at one time, back in 2011. Where's the evidence that there wasanything like that happening in the 13th of June to the 21st of June? Mr Green accepts that that stuff's there. there's no challenge because the stuff's there. I mean, how can you change the stuff there when thesephotographs have been taken, it's there. But when did it get there, how was it there, was it going to be used That's the crucial issue in regards toMr Green Simply no evidence.Judge's directions in his summing-up to the jury[15] The Judge prepared a question trail to assist the jury. In his summing-up, he directed the jury to consider the evidence relevant to each charge against each defendant separately. He reminded the jury of his earlier direction to decide the factual issues in the case solely on the basis of the evidence presented during the course of the trial:I now wish to speak to you on an important matter, which is, you only consider the evidence you have heard during the course of this trial. If you have heard anything about this matter in the past or the defendants who face trial, or if you have heard something that sounds like it, you must put that out of your minds. In particular, you may have seen an item on TV recently about some or all of the accused involving what appears to be similar circumstances to the ones they face trial for. If you have you must disregard that completely. It is a fundamental principle of our system of justice that people, particularly the three accused, are entitled to be tried solely on the evidence given in this Courtroom in a formal way and tested, if necessary, in a formal way, by cross-examination.Jury's verdicts[16] The jury found Mr Green guilty on counts 4, 5 and 7 but not guilty on counts 3 and 6.Submissions[17] Mr Rogers submits that the Judge's directions to the jury concerning internetsearching in his opening remarks were inadequate. He argues that it was insufficient for the Judge merely to instruct the jurors not to make any enquiries about the case, including by searching on the internet, and to explain why. He submits that the Judge was required to reinforce that direction by: telling the jurors that if they did search on the internet for information about the case in defiance of his directions, they would be in contempt of court; explaining what contempt of court means;warning the jurors that they could be punished if they were found to be in contempt of court; and advising them of the punishment that might be imposed.[18] Mr Rogers also submits that the Judge should have reminded the jury of these directions at the end of each day and again at the end of the trial in his summing-up. He accepts that there is no evidence that any juror undertook any internet search.However, he argues that "the sheer volume of the material available on the internet in combination with the absence of [these further directions] means that there is ahigh risk that jury internet searching occurred".Discussion[19] We are not persuaded that there has been a miscarriage of justice. The appeal against conviction must be dismissed for the reasons that follow.[20] First, there is no evidence that any juror undertook any search on the internetfor information relating to Mr Green's case.[21] Second, the Judge's directions about not searching on the internet or making any other enquiries about the case were clear. He directed the jury to disregard any information they may have received from any source outside the courtroom. He instructed the jurors in clear terms that they were required to decide the case solely on the basis of the evidence presented in Court and he explained what constitutes evidence.[22] We note that defence counsel did not take any issue with any of the Judge'sdirections at the trial and no further directions regarding internet searching wererequested. Trial counsel apparently considered that the Judge's directions wereappropriate and required no further clarification or elaboration. We agree with that assessment.[23] Third, it is well settled that, absent any evidence to the contrary, it must beassumed that the jurors complied with the Judge's directions. This was confirmed bythis Court in Mussa v R:8In the absence of any evidence of any failure by jurors to heed the Judge'sdirection in this case, we have no basis for concluding that anything untoward happened, much less that there was a miscarriage of justice. New Zealand research into juries provides a basis for confidence aboutjuries' compliance with judicial directions in the great majority of cases.[24] Chambers J made similar observations when giving the reasons for the judgment of this Court in Weatherston v R:9The criminal system proceeds on an assumption that judges' directions arefaithfully followed by juries: throw away that assumption and every verdict becomes suspect.[25] The assumption that jurors will follow instructions diligently was recently confirmed by the Privy Council in Taylor (Bonnett) v The Queen:10The assumption must be that the jury understood and followed the directionthat they were given: [T]he experience of trial judges is that juriesperform their duties according to law. [T]he law proceeds on the footingthat the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. To conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions by the trial judge.[26] Fourth, the verdicts themselves provide some additional confidence that the jury conscientiously followed the Judge's directions and determined each charge byexamining the evidence presented in Court relevant to it. The jury found Mr Greenguilty on only two of the four possession charges. This was despite the "ton of evidence", as Mr Green's counsel put it in closing, showing that Mr Green had beeninvolved in running the Daktory from November 2008 until December 2011 as a place where cannabis could be purchased and consumed, and the fact that Mr Green was living at the Daktory when significant quantities of cannabis were found there, in several locations, when the police searched the premises in June 2012.8 Mussa v R [2010] NZCA 123 at [41] (footnote omitted).9 Weatherston v R [2011] NZCA 276 at [24].10 Taylor (Bonnett) v The Queen [2013] UKPC 8, [2013] 1 WLR 1144 at [25].Sentence appeal[27] Mr Rogers submits that in imposing sentence, the Judge gave insufficient weight to the fact that Mr Green was required by the Department of Corrections to live at the Daktory following his release from prison. He further submits that the Judge did not take sufficient account of the fact that Mr Green was at the Daktory for only a brief period before he committed the offences, meaning his offending was short in duration.[28] There is nothing in either of these points. The fact that Mr Green reoffended immediately after being released from prison having served his sentence for the same type of offending does not appeal as a mitigating feature. The Judge'sapproach to sentencing was entirely orthodox and the sentences imposed were clearly within the range of his sentencing discretion. The appeal against sentence must accordingly be dismissed.Result[29] The appeal against conviction is dismissed.[30] The appeal against sentence is also dismissed.Solicitors:Crown Law Office, Wellington for Respondent