PAPPS v R [2023] NZCA 352

PAPPS v R [2023] NZCA 352 [9 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA384/2022[2023] NZCA 352BETWEEN GREGORY ROGER PAPPSAppellantAND THE KINGRespondentHearing: 19 July 2023Court: Gilbert, Lang and Woolford JJCounsel: Appellant in personB J Thompson for RespondentJudgment:Reissued:9 August 2023 at 9.30 am17 August 2023 at 11 amJUDGMENT OF THE COURTA The appeal against conviction is allowed to the extent that the convictions oncharges 10 and 11 are set aside. We direct that a judgment of acquittal beentered on these charges.B The appeal against conviction on the remaining charges is dismissed.C The appeal against sentence is allowed to the extent that the sentence of sevenmonths' home detention is set aside and a sentence of five months' homedetention is substituted.D The sentence of community work remains intact.E The appellant must report to a probation officer on 25 August 2023 and thesentence of home detention will resume on that date on the conditions set outat [73] below.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Papps was found guilty by a jury in the District Court on seven charges ofbeing in possession of items with the intention of using them for manufacturingmethamphetamine and pleaded guilty to one charge of being in possession of utensilsfor the purpose of consuming methamphetamine. On 29 July 2022 Judge W Lawsonsentenced Mr Papps to seven months home detention and 100 hours community work.1Mr Papps appeals against both conviction and sentence.Factual background[2] The charges were laid after the police executed a search warrant at Mr Papps'address on 12 April 2019. When they entered the property, they found a garage thatwas secured with a lock. Security cameras had been installed on the exterior of theaddress.[3] When the police entered the garage they found another security camera,although this did not have the ability to record events within the garage. Scattered indifferent areas of the garage they also found items of equipment that they believedwere consistent with having been used for the manufacture of methamphetamine.In addition, they found materials that could be used in the manufacture ofmethamphetamine. These included iodine, hydrochloric acid, phosphorous acid andcaustic material. Swabs taken from several areas in the garage revealed the presenceof methamphetamine, although not in significant concentrations.[4] When the police searched the dwelling at the address, they found pipes andsyringes that were consistent with having been used for the consumption ofmethamphetamine.The charges[5] At the beginning of the trial Mr Papps faced 14 charges. The most serious ofthese alleged that he had manufactured methamphetamine at his address between1 R v Papps [2022] NZDC 14632 [Sentencing notes] at [14].9 October 2017 and 12 April 2019. He also faced 12 charges of being in possessionof equipment, materials, and a pre-cursor substance with the intention that those itemsbe used in the manufacture of methamphetamine. In addition, he faced one charge ofbeing in possession of a methamphetamine pipe.[6] The charges of being in possession of equipment related to a steam distiller, awater pump, flasks, a four hob electric stove top, a used pH test strip, and an electricfrying pan.[7] The charges of being in possession of materials related to quantities ofhydrochloric acid, phosphorus acid, caustic material and iodine that were found in thegarage. All but the iodine were found in liquid form in containers of differingdescriptions. The iodine was in solid balls. The charge of being in possession of apre-cursor substance related to a flask containing a substance that had the propertiesof hydrochloric acid.[8] Mr Papps pleaded guilty to the charge of being in possession of amethamphetamine pipe at the commencement of the trial. At the end of the Crowncase the Judge discharged him under s 147 of the Criminal Procedure Act 2011 on thecharge of being in possession of the pH test strip. This was on the basis that the itemhad already been used and could not be used again in any future manufacture ofmethamphetamine.[9] The jury was unable to reach a verdict on the charge of manufacturingmethamphetamine. It found Mr Papps not guilty on all the equipment charges otherthan that relating to the electric frying pan. The jury found him guilty on that chargeas well as on the remaining charges of being in possession of methamphetaminematerials and a pre-cursor substance.The appeal[10] Mr Papps advances several grounds of appeal. First, he contends the Crownshould not have been permitted to file an amended the Crown Charge Notice at thebeginning of the trial. This contained a separate charge for each of the items found inhis garage. He also contends that the Judge erred in one respect in the wording heused in the question trail. This related to the fact that the question trail asked the juryto decide whether Mr Papps was in possession of the items with the intention that theybe used by him "or someone else" to produce or manufacture methamphetamine.In addition, Mr Papps contends an element of unfairness arose because the jury hearda considerable amount of evidence relating to the manufacture of methamphetaminecharge when the bulk of the charges did not relate to that issue.[11] However, the aspect of the appeal that Mr Papps presses most strongly is anassertion that a miscarriage of justice has occurred because of deficiencies in theconduct of his defence by his trial counsel, Mr Craig Horsley. He contends Mr Horsleycommitted several significant errors before and during the trial and these underminedhis defence. Mr Papps contends that Mr Horsley erred:(a) in failing to adduce evidence of a hair follicle drug test carried out on16 May 2019;(b) in failing to provide the jury with the digital date stamp of a photographthat Mr Papps produced when he gave evidence;(c) in failing to draw Mr Papps' attention to significant Institute ofEnvironmental Science and Research Ltd (ESR) test results untilshortly before the trial;(d) in failing to ensure Mr Papps obtained a copy of the booklet of textmessages that the Crown proposed to rely on at trial;(e) in failing to object to irrelevant and inadmissible text messages withinthat booklet; and(f) in handing the wrong document to Mr Papps when he gave evidence.Amendment of the Crown Charge Notice[12] In its original form, the Crown Charge Notice contained charges that groupedtogether the various items of equipment and material found in Mr Papps' garage.Mr Horsley advised the Crown prior to the trial that Mr Papps proposed to advanceseparate defences in relation to each of the items found in his garage. The Crowntherefore applied for leave to amend the Crown Charge Notice by laying a separatecharge for each item of material and equipment found in the garage. Not surprisingly,Mr Horsley did not object to the application and the Judge granted it on the first dayof the trial.[13] Mr Papps contends that the amendments disadvantaged him because theyresulted in convictions being entered on numerous charges rather than one or two aswould have been the case if the Crown Charge Notice had remained in its originalform.[14] Mr Papps' argument on this issue faces an immediate obstacle because thedecision to amend the charges followed orthodox charging principles. It is wellestablished that a charge must generally relate to a single offence, and it must alsocontain sufficient particulars to fairly inform the defendant of the substance of theoffence alleged.2 As the Supreme Court observed in R v Qiu:3Separate counts facilitate fairness in the conduct of the trial by focusingattention on matters of fact and law which can and need to be distinguishedfor the purposes of different counts. In the event of conviction, they assist thesentencing Judge by indicating the extent of culpability.[15] The appropriateness of laying a separate charge for each item in the presentcase is demonstrated by the fact that Mr Papps sought to advance differentexplanations as to how he came into possession of each item, as well as the use towhich it was to be put. The amendment allowed the jury to concentrate on theevidence for the Crown and defence in relation to each item. This is reflected in thejury's verdicts that were not the same for each offence.[16] More importantly, significant practical issues would have arisen if theCrown Charge Notice had remained in its original form. If the jury had returned aguilty verdict on one of the composite charges the trial Judge would not have knownwhich items the jury had found were in Mr Papps' possession with the requisite intent.2 Criminal Procedure Act 2011, s 17(1) and (4).3 R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [8].He would have been required to reach his own conclusion on that issue whendetermining the sentence to be imposed on each charge. This could have been toMr Papps' significant detriment. By way of example, the Judge may have concludedthat the jury had found Mr Papps guilty of being in possession of all the items ofequipment with the requisite intent when, as the verdicts demonstrate, that was not thecase.[17] We are satisfied no injustice was caused to Mr Papps by the amendment of theCrown Charge Notice. This ground of appeal fails as a result.The wording of the question trail[18] The Judge prepared a separate question trail for each of the charges thatMr Papps faced. He distributed the question trails and explained them to the jurybefore counsel delivered their closing addresses. Each of the question trails relatingto the charges of being in possession of items found in the garage contained thefollowing question:Has the Crown made you sure that Mr Papps intended that either he orsomeone else would use the [items] to produce or manufacturemethamphetamine?[19] Mr Papps takes issue with the inclusion of the words "or someone else".He points out that the Crown never suggested that another person would use the itemsfound in his garage to manufacture methamphetamine. He therefore says that thewords added an element that was irrelevant to the Crown case.[20] Mr Horsley raised this issue with the Judge at the conclusion of the Crowncase. In a minute issued on 7 March 2022, the Judge decided not to remove the wordsfor the following reasons:4[4] I have considered Moore v Police which is a decision of Randerson Jon 23 August 2001. In that case Randerson J makes it clear that the essentialelement as it applies to that question includes the intention of the person inpossession maybe to use the equipment or material personally for the specifiedoffence or that someone else will do so.4 R v Papps DC Tauranga CRI-2019-019-002299, 7 March 2022 (footnote omitted).[5] I am satisfied that the question should remain as it is and that is thequestion that will go the jury in relation to charges 2 and following.[21] In Moore v Police, the police had found items consistent with use in themanufacture of drugs at the appellant's property.5 When interviewed, the appellanttold the police that he was looking after the equipment for a friend. He denied usingthe equipment himself to manufacture methamphetamine or any other drug.Randerson J noted that the relevant intention for the purposes of the charge is that ofthe person who has possession of the equipment or material and must be assessed atthe time that the person is found in possession of it. However, the Crown may allegethat the person in possession intended to use the equipment or material personally tocommit the specified offences or intended that someone else will do so.6[22] That issue was obviously relevant in Moore because of the appellant's claimthat he was looking after the equipment for a friend.7 It is not, however, relevant inthe present case because the Crown did not allege, and there was nothing in theevidence to suggest, that another person might use the items to manufacturemethamphetamine. The reasoning in Moore is therefore of little assistance in thepresent case.[23] On the Crown's behalf Mr Thompson contends that the Crown did notexpressly allege that Mr Papps had the items in his possession with the intention ofusing them himself in the manufacture of methamphetamine. He points out that theprosecutor told the jury in his closing address that they could be sure the items foundat Mr Papps' address "were intended for the future use of methamphetaminemanufacturing".[24] We agree that this aspect of the Crown's closing address was framed in generalterms. However, the thrust of the Crown case was to the effect that Mr Papps had beenresponsible for manufacturing methamphetamine in his garage and that he had thematerial and equipment in his possession with the intention of using it for the samepurpose in the future. Given the way in which the Crown ran its case we agree with5 Moore v Police HC Tauranga AP11/01, 23 August 2001.6 At [25(c)].7 At [10].Mr Papps that it was not necessary for the words "or someone else" to be included inthe questions left to the jury.[25] We are also satisfied, however, that no miscarriage of justice occurred becausethe words were included in the question trail. The jury would been left in no doubtthat the Crown alleged Mr Papps was the person who would be using the items tomanufacture methamphetamine in the future because they were found locked in hisgarage and he had manufactured methamphetamine in that location in the past.We therefore do not consider the jury would have been distracted by the inclusion ofthe words, or that this could have contributed to the jury's decision to find him guiltyon some of the charges.[26] This ground of appeal fails as a result.Evidence relating to manufacture of methamphetamine[27] Mr Papps contends that a miscarriage of justice occurred because of the extentto which the jury heard evidence relating to the alleged manufacture ofmethamphetamine. Some of the text message evidence related exclusively to thatissue, as did much of the evidence called by the Crown from a scientist from ESR,Mr Russell, and a police drug expert.[28] We do not consider it surprising that much of the evidence at trial was devotedto issues relating to the manufacture of methamphetamine because this was the mostserious charge Mr Papps faced. The allegation that he had manufacturedmethamphetamine in the past was also highly relevant to the issue of whether he wasin possession of the items that the police found in his garage with the intent of usingthem to manufacture methamphetamine in the future. Nor can there be any suggestionthat the jury erroneously relied upon evidence relating solely to the manufacture ofmethamphetamine in finding him guilty on other charges. This is demonstrated by thefact that the jury acquitted him on all but one of the charges of being in possession ofequipment with intent that it be used for the manufacture of methamphetamine.[29] This ground of appeal fails as a result.Charges 10 and 11[30] Before dealing with Mr Papps' principal ground of appeal it is necessary todeal with issues that arose before and during the hearing in this Court in relation tocharges 10 and 11.[31] These charges alleged that Mr Papps was in possession of hydrochloric acidand phosphorus acid with the intention that those items be used in the manufacture ofmethamphetamine. During a conference held before the hearing in this CourtMr Papps advised that he wished to cross-examine Mr Russell regarding severalissues. The Court had therefore asked the Crown to ensure Mr Russell was availablefor cross-examination at the hearing.[32] On the day before the hearing Mr Thompson filed a memorandum advisingthat he had discussed the facts underpinning charge 10 with Mr Russell. This ledMr Thompson to acknowledge that the liquid to which this charge related may havebeen a mixture containing hydrochloric acid but that it was difficult to be sure whetherit was capable of being used in the manufacture of methamphetamine. Given thisuncertainty, the Crown accepted that the evidence no longer supported the guiltyverdict on charge 10.[33] Notwithstanding this concession, Mr Papps indicated that he wished tocross-examine Mr Russell on other matters. During cross-examination Mr Russellagreed that the quantity of phosphorus acid that formed the basis of charge 11 was alsoinsufficient to be capable of being used in the manufacture of methamphetamine.This prompted Mr Thompson to concede that there was insufficient evidence tosupport this charge as well.[34] The appeal against conviction must therefore succeed in relation to charges 10and 11.Trial counsel errorThe law[35] An appeal based on trial counsel error will only succeed if the appellant candemonstrate that a miscarriage of justice has occurred.8 The notion of a miscarriageof justice in this context requires the Court to undertake a two-step enquiry.9 First, theappellant must establish the existence of an error. Secondly, the appellant mustestablish there is a real risk the error may have affected the outcome of the trial orrendered it unfair or a nullity.10[36] In Hall v R, this Court held that an appeal based on trial counsel error focuseson the trial process and its outcome rather than on the characterisation of counsel'sconduct.11 An appeal will therefore not succeed unless it can be shown that an errorby trial counsel may have affected the outcome of the trial.[37] Earlier, in R v Scurrah, this Court noted that at one end of the spectrum theremay be errors that could not have affected the outcome of the trial. In such a casethere is no need to go further. However, at the other end of the spectrum the error mayhave effectively prevented the defendant from presenting a defence. In such a caseprejudice would readily be found.12[38] In Hall, this Court considered the situation that may arise where trial counselfails to follow the client's instructions on a fundamental trial decision. The threefundamental trial decisions relate to plea, the election whether to give evidence andthe need to advance a defence based on the defendant's version of events.13In R v Condon, the Supreme Court also confirmed that trial counsel is obliged topresent the defence an accused person wants to run.148 Criminal Procedure Act, s 232(2)(c).9 Section 232(4); and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].10 Section 232(4).11 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [9], citing R v Sungsuwan [2005] NZSC 57,[2006] 1 NZLR 730 at [70] as explained in R v Scurrah CA 159/06, 12 September 2006 at [13].12 R v Scurrah, above n 11, at [14].13 Hall v R, above n 11, at [65].14 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [28].Failure to adduce evidence of the hair follicle test[39] The Crown alleged at the trial that Mr Papps was a heavy user ofmethamphetamine. It said he had begun manufacturing methamphetamine both forhis own consumption and to earn income selling it to others. The Crown alleged thatthe text messages produced at trial showed that Mr Papps was engaged in the supplyof methamphetamine he had manufactured.[40] When he gave evidence Mr Papps acknowledged that he was a sporadic, butnot a heavy or consistent, user of methamphetamine, there being periods when he usedmethamphetamine and periods when he did not. To counter the Crown's argumentthat he was a heavy user of methamphetamine Mr Papps provided Mr Horsley with anegative test result for the presence of methamphetamine in a sample of hair takenfrom Mr Papps on 16 May 2019. This was approximately one month after his arrest.[41] Mr Papps alleges that the negative test result would have provided significantsupport for his contention that he was not a heavy user of methamphetamine. He toldus that methamphetamine will remain in a person's system for many months after it isconsumed. He says the test result would have enabled Mr Horsley to submit thatMr Papps could not be a heavy user of methamphetamine as the Crown alleged.[42] Mr Papps has not provided any scientific evidence to support his assertionabout the length of time methamphetamine will remain in a person's system but weare prepared for present purposes to proceed on the basis that his assertion is correct.We also accept that the extent to which Mr Papps was consuming methamphetamineat the time of his arrest was a material issue at the trial. This is demonstrated byquestions put to Mr Papps during cross-examination and submissions made to the juryin the Crown's closing address.[43] However, we are satisfied that the issue was of peripheral relevance to theissues the jury was required to consider. The focus of the Crown case was on theunlikely coincidence of Mr Papps being in possession of all the items found in hisgarage if he had not used them to manufacture methamphetamine in the past and if hedid not intend to use them again for that purpose in the future. Its argument thatMr Papps was likely to be a heavy user of methamphetamine was only advanced toestablish a motive for Mr Papps to manufacture methamphetamine.[44] Mr Papps frankly acknowledged that he had been a long-term user of bothcannabis and methamphetamine when he gave evidence at trial. This led Mr Horsleyto suggest in his closing address that Mr Papps' lengthy association with drugsarguably gave him greater, real-world, expertise on drug-related issues than the expertscalled by the Crown.[45] Given the way in which the case was run by both sides we do not consider theissue of whether Mr Papps was a sporadic or heavy user of methamphetamine wouldhave been of any real significance to the jury. Mr Papps could not resile from the factthat he was a user of methamphetamine, whether heavy or sporadic, and the Crownwas entitled to suggest that this provided him with a motive to manufacture that drug.The hair follicle test results would therefore have been of marginal assistance to thedefence case. There is no prospect that the failure to lead the evidence had any impacton the ultimate outcome.Failure to adduce digital date stamp of photograph[46] This issue arises because, when he gave evidence, Mr Papps produced aphotograph in which he was depicted spraying a substance onto the teats of a goat. Hesaid he would dump green waste at a friend's address. His friend owned a goat andthe goat had developed an infection of the udder and hind legs. He said he went to seeanother friend who had a dairy farm, and this person gave him iodine to use in treatingthe goat's infection. He said he mixed the iodine with methylated spirits and waterand then sprayed it on the infected area. This resolved the goat's infection.[47] Mr Papps says that a date stamp on the photograph confirms that it was takenon 10 April 2018, approximately 12 months prior to his arrest. He contendsMr Horsley ought to have drawn the jury's attention to the date stamp so they wouldknow Mr Papps had been using iodine for an innocent purpose many months beforehis arrest.[48] The Crown did not dispute the possibility that Mr Papps may have used someof the iodine for innocent purposes. In his closing address the prosecutoracknowledged this possibility. He pointed out, however, that Mr Papps neverthelesshad access to iodine along with numerous other items which, like iodine, can be usedin the manufacture of methamphetamine. The prosecutor also pointed out during hiscross-examination of Mr Papps that, when iodine is used for animal husbandrypurposes, it will generally be in the form of a tincture. The iodine found in Mr Papps'garage was in the form of solid balls of iodine. The evidence established that iodinein this form is commonly used in the manufacture of methamphetamine.[49] We therefore do not view the date on which the photograph was taken as beingof any real significance given the way in which the issue was dealt with by both sidesat trial. It follows that any failure by Mr Horsley to adduce evidence of the date stampcould not have had a material effect on the outcome of the trial.Failure to provide Mr Papps with details of ESR test results[50] Mr Papps acknowledges that, as Mr Horsley received disclosure of materialfrom the ESR tests, he would forward it to Mr Papps. However, Mr Papps says thatMr Horsley would often not summarise the ESR tests' findings. This hamperedMr Papps' ability to understand the significance of the material he was receiving fromMr Horsley.[51] Mr Papps also complains that some of the information Mr Horsley gave himabout the ESR test results was incorrect. By way of example, Mr Horsley wronglyadvised him that the ESR test had not found any traces of drugs on one of the glassflasks and on the electric fry pan. It was not until shortly before the trial that Mr Pappsbecame aware that the ESR test had found drug-related residues on both items.Mr Papps contends that the late discovery of these results meant that his defence hadto be reformulated at the last minute.[52] We accept that Mr Horsley ought to have advised Mr Papps of these test resultsmuch earlier than he did. Mr Papps' preparation for trial may well have been disruptedby the late discovery of the true position. However, Mr Papps' argument overlooksthe fact that the jury found him not guilty on the charge relating to the flask. Further,the ESR evidence about the residue found on the fry pan did not cause Mr Papps toalter his defence in relation to that item. His draft brief of evidence recorded that hehad found the fry pan at the refuse transfer station a few weeks before the police cameto his address and he had never used it. The late discovery of the existence of residueon the fry pan did not affect the viability of that defence, even though the juryultimately must have rejected it. We therefore do not consider the late disclosure ofESR testing results could have influenced the outcome of the charge relating to the frypan.Failure to ensure Mr Papps had early access to the trial booklet of text messages[53] Mr Papps and Mr Horsley prepared for the trial using a text message bookletthe Crown had provided during the disclosure process. Shortly before the trial,however, the Crown produced a further booklet. This contained some text messagesthat had not been in the earlier booklet and omitted others that had been in the earlierversion.[54] Mr Papps says he was not aware of the changes that had been made to thebooklet until he was giving evidence at trial. He took us to an exchange that occurredduring his cross-examination by the prosecutor in which he was clearly being taken totext messages he had not seen before. He says this placed him at a significantdisadvantage in answering the prosecutor's questions. He also believes it is likely tohave significantly undermined his defence because his confusion about the textmessages created a poor impression for the jury. He says Mr Horsley ought to haveensured he was given a copy of the trial booklet well before the trial began.If necessary, Mr Horsley ought to have applied for an adjournment to give Mr Pappstime to consider the text messages.[55] We accept that Mr Papps was placed at a disadvantage by the fact that he sawthe trial booklet for the first time during the trial. The transcript of evidence makes itclear that he found it difficult to answer some of the prosecutor's questions because hewas being referred to text messages he had not seen before. This would obviouslyhave not helped advance Mr Papps' defence.[56] However, the issues Mr Papps raises need to be placed in context. Mr Pappsbegan giving his evidence at about 4 pm on the third day of the trial and finished givingevidence at 3 pm the next day. His cross-examination lasted for several hours and aconsiderable portion of it related to the text message booklet. In total Mr Papps'evidence occupies 99 pages of the trial transcript. For the most part he was able torespond readily and robustly to questions put to him by the prosecutor. He wassteadfast in rejecting propositions that he did not accept and in maintaining his versionof events. We therefore do not accept the difficulties caused by the late production ofthe trial booklet would have adversely affected the jury's assessment of Mr Papps'credibility.Putting the wrong document to Mr Papps during his evidence-in-chief[57] When Mr Papps gave evidence, he explained that he had been subject of aburglary during 2016. He had installed security cameras after this as a means ofdeterring burglars in the future. The purpose of this evidence was to negate theCrown's theory that the security cameras were designed to deter others from enteringthe property and discovering his drug manufacturing operation.[58] Mr Papps says he was expecting Mr Horsley to provide him with a documentfrom the police confirming that Mr Papps had reported a burglary at his address to thepolice in 2016. Instead, Mr Horsley provided him with a copy of a letter from aninsurance company that he was not familiar with. He says this would also have createda poor impression for the jury.[59] The trial transcript confirms that Mr Papps appears to have been slightlyconfused when Mr Horsley gave him the letter from the insurance company. However,the letter confirmed that a burglary had occurred at Mr Papps' address during 2016and this had been reported to the police. It follows that the evidence Mr Papps wishedto place before the jury was adduced even though it took a slightly different form tothat which he was expecting. We do not consider any confusion Mr Papps may havedisplayed when the letter was initially put to him would have adversely affected hisoverall credibility.Failure to object to irrelevant and prejudicial text messages[60] This issue arises because the text message booklet contained a series of abusiveemails from a person with whom Mr Papps had had a dispute about a vehicle.Mr Papps had become frustrated with this person and had blocked her from being ableto send him further text messages. After he had done so she sent him further textmessages, including a message referring to him as a "meth cook".[61] Mr Horsley accepts that he ought to have objected to the admission of the textmessages sent to Mr Papps after he had blocked the sender from sending him furthercommunications. Mr Papps did not receive any of the messages sent after that pointso he had no opportunity to respond to them.[62] The text messages were plainly unfairly prejudicial to Mr Papps because theyincluded the accusation that Mr Papps was a "meth cook". This had direct implicationsnot only for the charge of manufacturing methamphetamine but also the remainingcharges. We therefore agree that Mr Horsley should have objected to the text messagesbeing produced prior to the commencement of the trial. However, Mr Horsley toldthe jury to put them to one side in his closing address and the Judge reiterated this inthe following passage in his summing up:[18] As you know there are messages from unknown subscribers andbecause they are messages to Mr Papps and he is responding to them you canuse those messages as evidence that you can properly consider when you areassessing each of the charges, but you need to be cautious about the messagesfrom subscriber ending 37005 detailed at the bottom of page 12 and over topage 13 after [she] was blocked. Mr Horsley has made some comment aboutthat. Those communications were clearly made after Mr Papps had blockedthat number and so you do not know what Mr Papps' response is.Frankly, because of the fact that you do not have Mr Papps' response youcannot consider that content reliable. You may find that the best way to dealwith that is to simply put that evidence to one side and consider the textmessages that Mr Papps has responded to if you are satisfied that the responsehas come from Mr Papps.[63] We consider it likely the jury adopted the Judge's suggestion because the natureof their verdicts suggests they were careful to base them on the evidence relevant toeach charge. We therefore have no concern that the introduction of the text messagesmay have affected the outcome of the trial.Conclusion[64] We accept that Mr Papps is justified in feeling aggrieved about aspects ofMr Horsley's performance prior to the commencement of the trial. However, thetranscript reveals that Mr Horsley challenged the Crown case with considerable vigourand delivered a persuasive closing address. Mr Papps also had the opportunity to placehis explanations before the jury regarding the items found in his garage. This allowedthe jury to weigh these against the arguments advanced by the Crown. His evidenceobviously left the jury in a state of reasonable doubt on several of the charges.The defence advanced on the manufacturing charge was also sufficient to prevent thejury from being able to reach a verdict and we understand the Crown has elected notto seek a retrial on that charge. Notwithstanding the identified shortcomings inMr Horsley's performance before the trial we therefore do not consider there is anyprospect a miscarriage of justice has occurred.[65] The appeal against conviction on the remaining charges is accordinglydismissed.Sentence[66] Mr Papps acknowledged that the sentence of home detention was fair given theconvictions he had sustained but contended that the sentence of community workshould not have been imposed because it ran the risk of bringing him into contact withpersons having criminal tendencies.[67] We do not accept this submission because a sentence of community work maybe completed in a multitude of ways, many of which will not bring the offender intocontact with persons having criminal convictions or tendencies. However, weconsider the sentence of home detention ought to be adjusted to reflect the fact thatthe Crown now accepts that Mr Papps should not have been convicted on charges 10and 11. Mr Papps contends that in fixing any revised sentence, the extended periodhe spent on bail should also be taken into account. However, the Judge allowed anappropriate discount for this factor at sentencing and no further adjustment isrequired.15[68] The appeal against sentence is accordingly allowed and the sentence of homedetention is reduced from seven months to five months. The sentence of 100 hours'community work remains intact.Result[69] The appeal against conviction is allowed to the extent that the convictions oncharges 10 and 11 are set aside. We direct that a judgment of acquittal be entered onthese charges.[70] The appeal against conviction on the remaining charges is dismissed.[71] The appeal against sentence is allowed to the extent that the sentence of sevenmonths' home detention is set aside and a sentence of five months' home detention issubstituted.[72] The sentence of community work remains intact.[73] The appellant must report to a probation officer on 25 August 2023 and thesentence of home detention will resume on that date subject to the followingconditions:(a) The sentence is to be served at [address redacted].(b) To abstain from the consumption and/or possession of alcohol, non-prescription drugs and synthetic cannabis unless prescribed by amedical practitioner.(c) To undertake any appropriate assessment, treatment, counselling orprogramme as directed by a probation officer.15 Sentencing notes, above n 1, at [10]–[11].Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent