ALLEN v R [2017] NZCA 392

ALLEN v R [2017] NZCA 392 [6 September 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA141/2016[2017] NZCA 392BETWEEN GEOFFREY MILTON ALLENAppellantAND THE QUEENRespondentHearing: 31 July 2017Court: Cooper, Brewer and Peters JJCounsel: T Cooper for AppellantY V Yelavich for RespondentJudgment: 6 September 2017 at 11.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] At the conclusion of his trial before Gilbert J and a jury on 27 November 2015 the appellant, Geoffrey Allen, was convicted of 38 charges, most of which alleged offending under the Misuse of Drugs Act 1975.[2] Among the charges on which convictions were entered were 14 of supplying methamphetamine and 13 of manufacturing methamphetamine. He was acquitted of one representative charge of manufacturing methamphetamine, two particularised charges of manufacturing methamphetamine, one representative charge of supplying methamphetamine, and two particularised charges of supplying methamphetamine.[3] On 15 March 2016 Mr Allen was sentenced to 19 years' imprisonment.1Gilbert J ordered that he serve a minimum term of 10 years.[4] Mr Allen now appeals against the convictions alleging there was a miscarriage of justice on two grounds. He contends first that the Judge erred by not discharging the jury after an intercepted communication was played to the jury from which it is said the jury could have inferred Mr Allen had been in jail. The second ground is that the Judge again erred in not discharging the jury after the foreperson and three other jurors reported that they had seen Mr Allen outside smoking drugs with two co-defendants.Background[5] The Crown alleged that Mr Allen was the head of a methamphetamine manufacturing and distribution operation. It was said that on various occasions from 2011 he was actively involved in the manufacture and/or supply of methamphetamine from various addresses, including his home address and a storage unit. Evidence relied on by the Crown included: items that were seized from his address and van and then forensically analysed; intercepted text messages, phone calls and polling data; and photographic evidence obtained as a result of surveillance. One strand of the Crown's case alleged that Mr Allen had been involved in the supply and distribution of methamphetamine at storage facilities, where he met women and exchanged methamphetamine in return for sex.[6] One of the representative charges alleging manufacture of methamphetamine claimed that the appellant had manufactured methamphetamine in the garage and laundry of his home in May 2014. The Crown claimed that the readings of methamphetamine and pseudoephedrine obtained by testing were consistent with the manufacture of methamphetamine. The defence on that charge was that the high readings of methamphetamine could be explained by personal use. The Crown called evidence from an ESR scientist, Ms Mayo, to the effect that any such personal use would need to have reached implausible levels (15,000 smokes over 930 days, the period of the charge, which equates to an average of more than 15 per day).1 R v Allen [2016] NZHC 445.[7] Mr Allen's defence generally was that he used, but did not manufacture, methamphetamine. And in relation to the storage facility allegations he said his meetings with various women at the storage facility were solely for the purpose of procuring sex.First ground of appeal[8] The first ground of appeal is based on the fact that parts of an intercepted telephone conversation between Mr Allen and a Mr Wayne King were mistakenly played to the jury. The content of the intercepted communication had been transcribed and given to the jury, with two sections excised on the basis they were considered to be irrelevant. The excisions were noted in the transcript with the time and an entry stating "conversation not related to the proceedings". When therecording was played, however, the two sections intended to be omitted were played to the jury. In one of them there was the following exchange:King: HeyAllen: What?King: (Talks over). Too much bro I just wanna hear your voice.Allen: It's alright mate (talks over) now you can beat off to it.King: Yeah (laughs). I can start wanking now.Allen: Yeah, yeah, yeah.King: (Laughs).Allen: You'd be good at that by now.King: I'm pretty good at it now bro (talks over).Allen: It's like jail (both laugh) you're a fuckin' egg. I'll see ya later.King: Ok bro.Allen: See ya Saturday (talks over). See ya Saturday afternoon.(Emphasis added.)[9] Counsel for Mr Allen at his trial and in this Court, Ms Cooper, made an application to abort the trial on the basis that the jury might infer from hearing thisconversation that Mr Allen had previously been in jail. She submitted this could not be overcome by a direction to the jury.[10] The Judge rejected the application. He considered there was no reasonable danger of a miscarriage occurring. The part of the discussion about which the complaint was made was part of a longer conversation between Mr Allen and Mr King. The Judge noted it was interspersed with considerable laughter, the two men being very familiar with each other and engaging in light-hearted banter between friends. He considered the jury would have found the conversation difficult to follow without the benefit of a transcript, which they did not have. He observed that listening to it, he found it difficult to determine who was talking and precisely what was being said because of the rapidity of the exchange and the fact the two were talking over each other and laughing.[11] Further, although the Judge heard the word jail he did not gain the impression it was Mr Allen who had been in jail. On reviewing the original transcript, it tended to confirm it was Mr King, not Mr Allen who had convictions for criminal offending. The Judge said that was evident from another part of the conversation where Mr Allen had asked Mr King how long he had to go. The Judge continued:Mr King's response conveys the impression that he is serving a sentence of home detention and has a further six months to serve. It is in that contextthat Mr Allen responds to Mr King's comment about "wanking" by saying "you'd be good at that by now" and "it's like jail". These comments are clearly directed to Mr King's predicament. I do not consider they convey theimpression that Mr Allen has been in jail. Anyone could make the comment Mr Allen made without having personal experience of being in jail.[12] In those circumstances the Judge considered there was no real danger of a miscarriage of justice occurring as a result of the jury hearing this "throwaway and inconsequential comment". They would be directed to disregard anything said in the excised sections of the audio, and could be expected to follow that direction.[13] On appeal Ms Cooper essentially repeats the argument that she made at the trial. Mr Allen's comment about it being like jail would justify the inference he had been in prison. She submitted this could have improperly affected the jury'sdecision-making and the assessment of Mr Allen's credibility. She also referred to astatement in the Judge's summing-up:[97] Regarding the transcripts of the intercepted telephone conversations, please bear in mind that the evidence is the audio recording, not the transcript. While it is believed that the transcripts provided to you are accurate, if you consider that there is an error in the transcripts, the primary evidence is the recording itself.[14] Ms Cooper claimed this could have made the jurors think they could consider the entirety of the relevant communication between Mr Allen and Mr King, rather than limiting themselves to the parts of it that had been transcribed.[15] The inadvertent disclosure to the jury that a defendant has been in prison is not of itself sufficient reason for a jury to be discharged. As with other prejudicial material, there must be a fact-specific inquiry into the circumstances.2 The question faced by the trial judge is encapsulated in s 22(3) of the Juries Act 1981, which empowers the discharge of the jury if that is in the Court's opinion "highly expedient for the ends of justice". The question on appeal is whether there has been a miscarriage of justice as a result of the trial continuing after the admission of the prejudicial evidence.3 The answer depends on considerations such as the nature and manner of the disclosure, the nature of the defence case and the extent to which it relies on credibility of witnesses, whether there is physical or other evidence that corroborates the evidence of one or other of the witnesses, and what took place in the trial after the evidence was given.4[16] We do not consider that the Judge erred in not discharging the jury in the circumstances that had arisen. The Judge was well-placed to assess the potential impact the disclosure might have had and we see no reason to differ from the judgment he formed. Ms Cooper did not suggest that we listen to the conversation and we have not found it necessary to do so: the Judge summarised its nature and referred to the difficulty the jurors would have had in registering who had said what at the relevant point in the conversation. As Ms Yelavich submitted for the Crown, the reference to jail would have been inconsequential in the context of a month-long2 R v McLean (Colin) [2001] 3 NZLR 794 (CA) at [14].3 Criminal Procedure Act 2011, s 232(2)(c) and (4).4 Edmonds v R [2015] NZCA 152 at [24].trial, and the nature and content of the conversation would not have had any significance in comparison to the other evidence in what was a strong prosecution case. The fact there was no transcript of the excised part mistakenly played and instead there was a gap identified as being "not related to the proceedings" wouldlikely have further diminished its significance for any juror who had paid attention to it.[17] Nor do we accept Ms Cooper's contention that the Judge's instruction in thesumming-up that the primary evidence was the recording itself and not the transcript could have caused jurors to take the whole conversation into account. The direction was clearly related to what the jurors might consider to be inaccuracies in the transcript, not passages deliberately omitted from it because of irrelevance.[18] We note that there is no record of a direction to the jury specifically to disregard the parts of the conversation excised from the transcript, which the Judge apparently contemplated giving. Ms Yelavich advised us that she could recall the direction being given, but could find no reference to it in the trial record or her own notes. However, the absence of such a direction would not alter our view.[19] We reject this ground of appeal.Second ground[20] The second and principal ground of appeal is based on events that occurred later in the trial on the morning of 19 November. On that day, Ms Yelavich, who was the Crown prosecutor, drew the Judge's attention to an incident that had occurredinvolving the foreperson of the jury.[21] She reported that the foreperson had approached the officer-in-charge of the case, Detective Smith, and engaged him in a discussion prefaced by words to the effect that "this has nothing to do with the trial". He then told the Detective that he and other members of the jury had been looking out of the window of the jury room and had observed Mr Allen and two co-defendants sitting in the back of a vehicle and apparently passing a pipe between them. The inference may have been that they were smoking methamphetamine. The Detective advised the foreperson that hecould not take the matter any further and that the foreperson should advise the Registrar. In the meantime, the Detective raised the issue with Ms Yelavich, who advised counsel for the defendants. Ms Yelavich intimated that she may have not accurately conveyed some of the detail of the discussion, and suggested that the Judge might want to hear from the foreperson himself.[22] Ms Cooper then presented the joint view of defence counsel that it would be appropriate for the Judge to speak to the foreperson as to exactly what had been seen. She also said that defence counsel had spoken to their clients, who would deny acting in the manner suggested, and observed that both Mr Allen and another defendant had given evidence in the case that they were no longer drug users.[23] The Judge then spoke to Detective Smith. The Detective gave this account of events, which he said had commenced at 9.45 am that morning:DETECTIVE SMITH: the foreperson just walked up to the door and had his sort of hands upstraight away as if to say look this is not about the trial and he said, "This is not about the trial," and I thought okay that's all right. He said, "I just wanna raise, I'll bring it to your attention that I was just in the jury room with some of the jurors looking out the window waiting to start and we sawin a blue van outside the courtroom, down below on the street," and I took itto mean this morning, I didn't question further on it, "Mr Jawad and theother two defendants in a van passing a pipe around." And I wasn't sure what to say to be honest. So I just said, "Okay, thanks for that," and then he went on to say, "I've got a registration if you want it and if you go out there tomorrow morning you'll probably see them doing it again." Okay, I said, "Thanks for that," and just mentioned that he probably needs to raise it withMadam Registrar and that I would advise the Crown and I just thanked himand he walked away and he said, "I just think you should know," and thatwas it and he went back to the jury room and then I noticed a lot of other jurors arriving after that so obviously not all of the jurors were aware of it atthat time. So I didn't quiz him any further as to whether it was this morningbut it sounded like it had just happened and he felt obliged to say it straight away but I took it to mean that he was reporting an incident that was separate to the trial just for my information if I wanted to take it further sort of thingand I said, "Thanks very much." I didn't obtain the registration.THE COURT:No, no.DETECTIVE SMITH:And I didn't quiz him further. So that was the end of that.THE COURT:You did the right thing. Does any counsel have any questions you want to ask of Detective Smith?[24] Another one of the defendant's counsel took the opportunity of questioning Detective Smith. We do not need to set out the detail of his responses, but note that in response to a question, Detective Smith said that he had not wanted to question the foreperson further, stating:I didn't tell him that we shouldn't be talking but he was aware of it too by putting his hands up saying, "Hey, this is not about the trial," before I'd evenhad a chance to open my mouth so certainly I would have naturally grabbed the rego and quizzed him further if it had been anyone else in the Court environment but just not these people.[25] The Judge then said that he would give defence counsel the opportunity to take instructions and adjourned the trial for that purpose. When the trial resumed, counsel for all four defendants sought that the trial be aborted. Through their counsel, Mr Allen and the other defendants denied that they had smoked drugs outside the Court. Ms Cooper addressed the Judge on the basis that the foreperson had made an assumption that he had seen the defendants engaged in"methamphetamine activity" and had been concerned enough about it to raise it with the police. He had taken the vehicle's registration number, an action only relevant ifhe was intending that the police should follow up on it. And he had told the Detective that if he looked tomorrow the defendants would probably be there doing the same thing. The foreperson's actions showed there was real prejudice, themore so because other jurors had witnessed the same event. The jury had been contaminated by prejudice and would be unable to perform its function impartially. Ms Cooper also pointed out that Mr Allen and another defendant had given evidence in which they had claimed they no longer took drugs and the foreperson would be of the view that evidence was not correct because of what he had observed. It was contended that a direction to the jury would be insufficient to get over the difficulty.Other counsel supported Ms Cooper's stance.[26] Ms Yelavich, however, submitted that the Judge should speak to the foreperson to ascertain whether he considered that he and the other jurors could continue to perform their role impartially. After an exchange of views with counsel,the Judge decided that he would speak to the foreperson in the presence of the defendants and in the absence of the other jurors.[27] When the foreperson returned to the Court, the Judge advised him about the advice given by Detective Smith, and asked him whether it was correct. The foreperson confirmed that it was and that he was one of four jurors who had been looking out the window of the jury room observing three of the defendants passing around a pipe, which he said was either a marijuana pipe or a methamphetamine pipe. There was then this exchange:THE COURT:Right. All right, well now the reason why we're asking you these questionsis that it is obviously critically important, as I mentioned at the outset of this trial, that the case is decided entirely on the basis of the evidence that is heard in this courtroom.FOREMAN:Yes.THE COURT:It is fundamental to our whole system of justice. Now, whatever might have happened outside this morning is completely irrelevant, as I think you acknowledged. But, it does raise a concern about whether you feel able to decide the case impartially and able to continue in your role as a juror given what you thought you saw.FOREMAN:Yeah, well I think we can.[28] The Judge then asked the foreperson whether he had had any discussion about this incident with other jurors. The foreperson replied that there had been four of them standing at the window, but since the other jurors arrived in the jury room there had been no discussion. There was the following further exchange:THE COURT:No. So it is just those four?FOREMAN:Yeah. We just were standing there and watching it.THE COURT:All right. So are you able to confirm that there has been no discussion about that incident by you or any of the other four with the other members of the jury?FOREMAN:No.THE COURT:No. All right. Okay. All right. Well thank you. If you would mind justretiring again FOREMAN:Yes, sure.THE COURT: and I will just have a brief discussion with counsel.FOREMAN:And I won't mention anything to them.THE COURT:Don't mention anything about it. No. Thank you. We will be with you shortly.[29] The Judge heard from counsel again. Ms Yelavich summarised her opposition to the trial being aborted, noting that only four jury members had observed the incident and that the foreperson had confirmed his ability to consider the evidence impartially and decide the charges based on the evidence heard in the trial. She submitted that there would be benefit in a direction being given to the jury about the circumstances that had arisen but did not consider any other step was necessary. Ms Cooper indicated that she thought the Judge should ask the other jurors involved about their position. However, after further discussion, the Judge decided that he would not abort the trial and would deal with the situation by way of a direction.[30] The Judge then gave a direction. He began by recording that he had beentold that a number of jurors, "perhaps three or four" had been looking out thewindow and thought they had seen the defendants in a van passing a pipe around. He then emphasised it was extremely important they decide the case solely on thebasis of the evidence they heard in the courtroom, for reasons he had explained at the outset of the trial, which he then highlighted. It was only that evidence that could be tested in cross-examination, and only after that process could the jury decide if the evidence was reliable. It was critically important that the jury not depart from this careful process that has been "developed over centuries". He continued:So if a juror thought they saw a defendant doing something that they thought might not be lawful, that is completely irrelevant. They are not charged with that. What they are charged with is manufacturing, permitting premises for manufacture, supplying methamphetamine. These defendants have all admitted to you that they have used methamphetamine. That is not what they are here for. That is not what you have to decide. What they are on trial for is whether, on these dates, they were involved in this particular offending. So it was of some concern to us all, without wanting to be critical of any of you, that that discussion was related to us. I am pleased that it was reported to us but it provides the opportunity for me to reinforce to you this most important message. When you retire at the end of this case to consider your verdicts, look solely at the evidence that has been given in this courtroom, tested by the defence lawyers, or the Crown if it is defence evidence, and then been subject to re-examination, because that's the processwe have to go through to enable you to carry out that important assessment. Because you might have been completely mistaken about what you saw this morning. But what I can tell you for sure is, it is completely irrelevant and I would ask you to put it entirely out of your minds.[31] In this Court, Ms Cooper submitted the Judge should have discharged the jury. In terms of s 22(3) of the Juries Act the discharge was necessary to prevent a miscarriage, there being a real risk of prejudice or reasonable apprehension of prejudice. She emphasised that Mr Allen had denied taking methamphetamine or any drug at the time of the trial; the fact that four members of the jury thought they had witnessed him doing so could well cause them to question his credibility. Theforeperson's prediction the same conduct might recur on the following day showedthat he had formed an opinion about Mr Allen's character and credibility. The trial Judge erred by only asking the foreperson about his ability to try the case impartially and deciding to continue with the trial without asking the same question of the otherthree jurors. She also claimed that the foreperson's answer, "I think we can", was unsatisfactory and equivocal. Ms Cooper concluded her submissions by saying thatthe Judge should have given reasons for his decision. In the circumstances, despite the Judge's directions, there was a real risk of prejudice to Mr Allen.5[32] Ms Yelavich submitted there was no real risk that the outcome of the trial was affected for a number of reasons. She noted first that when the foreperson initiallyraised the issue he prefaced what he said by saying "this has nothing to do with thetrial". Second, the foreperson had said to the Judge that he thought the jury could continue in its role as the impartial fact finders. Third, the Judge addressed the substance of what had occurred, identified the potential risk to a fair trial by hearing counsel, and then gave specific and fair directions addressing it. There were in fact three clear directions that the jury could only try the case on the basis of the evidence given in court (at the outset of the trial, in response to the specific incident and in the summing-up). Fourth, the jury's observation of Mr Allen and his co-defendants would not have shown him in any different light from that already disclosed in the evidence and inherent in a defence that was heavily reliant on explaining the Crown's forensic evidence on the basis of personal use of methamphetamine.Fifth, the jury's verdicts acquitting the appellant of charges demonstrated they were able to put the van incident aside in accordance with the Judge's instructions.[33] As with the first ground, the question for this Court on appeal is whether, in terms of s 232 of the Criminal Procedure Act 2011, the continuance of the trial resulted in a miscarriage of justice given the events that had occurred: was there a real risk that the outcome of the trial was affected or was the trial unfair? We do not think that was the case for the following reasons.[34] When the trial commenced on 21 October 2015 the Judge's opening remarksincluded the standard directions, which instructed the jury:(a) to act as judges deciding the case solely on the basis of what was said in the courtroom;5 We note that in the event the foreperson did not participate in the deliberations: he was discharged on 23 November during the closing addresses, following a family bereavement. The trial proceeded with 11 jurors. Counsel did not suggest this was significant.(b) to be objective and dispassionate, putting aside prejudice including prejudice against persons who might be involved in the manufacture or supply of methamphetamine;(c) to refrain from making their own inquiries; and(d) about the purpose of cross-examination and its role in testing the evidence called by the parties.[35] In giving the specific direction during the trial after the van incident, the Judge was able to remind the jury about what he had said in his opening remarks. But the specific direction he gave also responded thoroughly and in a tailored way to the events that had occurred. This was in accordance with the approach to irregularities affecting the jury discussed by this Court in R (CA679/15) v R:6[59] Whatever the circumstances, and whatever the restrictions those circumstances may place on the appropriateness of making inquiries of jurors themselves, what the cases make clear is that where an irregularity involving the jury is discovered during a trial, the actions the judge takes must: address the substance of that irregularity; identify the risk to the principles of a fair trial that irregularity has raised; and give specific and firm directions so that risk can effectively be addressed and eliminated on the basis of the court's acceptance that juries generally follow the directions theyreceive.[36] The Judge gave a further direction near the beginning of his summing-up, in which he re-emphasised the importance of the jury excluding from their consideration anything other than the evidence given in the trial. He continued:[7] These directions are important in any trial. They are particularly important in long trials such as this because the prospect of extraneous information coming to the attention of one or more jurors is greater. This cannot always be avoided and such a circumstance arose late in this trial. Shortly before the Court commenced sitting last Thursday morning, the foreman and three other jurors saw the defendants in a van parked outside the Court building. The defendants appeared to be passing around something that these jurors thought may have been a pipe. Although the foreman recognised that it had nothing to do with the case, he thought he should draw it to the attention of the officer in charge. This in turn was reported to me, quite properly. I instructed you at the time that whatever the defendants may have been doing in the van is completely irrelevant to this trial and should be disregarded and I explained why.6 R (CA679/15) v R [2016] NZCA 444.[8] However, I will summarise the reasons again because of the importance of this direction. First, this case is solely about whether the Crown can prove beyond reasonable doubt the charges that have been brought against the defendants arising out of events alleged to have occurred between November 2011 and May 2014. What did or did not occur in the van last week is obviously irrelevant to those charges and cannot help you decide the factual questions you have to determine in this trial. Second, neither the defendants nor the Crown have had the opportunity to address you in relation to this incident. No evidence will be gathered, evaluated or presented to you concerning it. It would be quite unfair for you to speculate about what occurred and it would be wrong for you to attempt to do so. For these reasons, you must completely disregard this incident. Your task is to determine whether the Crown has proved the charges against each defendant beyond reasonable doubt based solely on the evidence that has been presented in this court.[37] With these directions the Judge again dealt directly with the issue that had arisen, gave clear instruction to the jury about how they were to regard it and explained the reasons for the direction with a clarity that justifies confidence the jury would have complied with the instructions. We accept that the circumstances gave rise to a concern that the jury may have had misgivings about Mr Allen's evidence atthe trial that he had ceased to be a user of methamphetamine and that may have raised an issue as to his credibility. However, for the jury to reason in that waywould have meant they were not complying with the Judge's instructions and we are not prepared to infer that occurred given the strength of the directions.[38] The issue also needs to be put in an appropriate perspective that takes account of the evidence that the Crown called and Mr Allen's reliance on a defence that at the time of the alleged offending he had been a heavy user of methamphetamine. On thebasis of the Crown's expert evidence, he would have been a user to an extraordinary extent. The focus of the trial was of course on the events alleged in the charges, and seen in this context what might have been observed through the jury room window cannot have been significant, even if, in breach of the Judge's instructions, the juryhad taken it into account. This conclusion is underlined by the fact that the jury acquitted Mr Allen on six of the charges that he faced, as noted earlier. This demonstrates that the jury went about its task diligently.[39] We have not been persuaded that the foreperson's answer was equivocal as Ms Cooper contended. The Judge accepted what he said at face value and did not inquire further. The foreperson's response was very much a matter for assessment bythe trial Judge. Given the care with which the Judge proceeded, we would needmore than counsel's submission to persuade us that particular criticism had substance. Nor do we consider the Judge was obliged to make separate inquiry of the other jurors who had seen the incident.[40] As to Ms Cooper's point that the Judge did not give reasons for his decision,we do not consider he was obliged to. It can safely be inferred that he considered that having inquired into the circumstances that had arisen they could be satisfactorily dealt with by the kind of firm and clear direction that he decided to give.[41] For these reasons, the second ground of appeal is also rejected.Result[42] The appeal is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent