ALLEN v R [2020] NZCA 596

ALLEN v R [2020] NZCA 596 [26 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA88/1994[2020] NZCA 596BETWEEN SHAUN ROBERT ALLENApplicantAND THE QUEENRespondentCourt: French, Clifford and Gilbert JJCounsel: Applicant in personZ R Hamill for RespondentJudgment:(On the papers)26 November 2020 at 9 amJUDGMENT OF THE COURTThe application to recall the judgment of this Court delivered on 19 December1996 is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Allen was convicted following a jury trial in 1994 on a charge of cultivatingcannabis. He appealed his conviction to this Court. The appeal was dismissed ina judgment issued on 19 December 1996.11 R v Allen CA88/94, 19 December 1996.[2] Mr Allen now seeks to recall that judgment on grounds relating tothe admissibility of a certificate of analysis produced at trial to prove that seeds andplant material allegedly seized from his properties was cannabis. Mr Allen contendsthe certificate was inadmissible because police did not comply with the prescribedmethod of delivery of the items to the ESR laboratory for testing.[3] Although some of the documents Mr Allen has filed suggest he is raising othergrounds, he has confirmed in a memorandum that the inadmissibility of the certificateof analysis is the sole ground.Background[4] The admissibility of certificates of analysis was and is governed by s 31 ofthe Misuse of Drugs Act. It read at the relevant time as follows:31 Evidence of analysis(1) For the purposes of this section, the term analyst means—(a) any person who is designated by the Minister by notice inthe Gazette as the analyst in charge of an approved laboratory;or(b) any person who works in an approved laboratory and who isauthorised, by the analyst in charge of that laboratory, to actas an analyst for the purposes of this Act, either generally orin any particular case.(2) Subject to subsections (3) and (4), in any proceedings for an offenceagainst this Act, a certificate purporting to be signed by an analyst,and certifying that, on a date stated in the certificate, the substance,preparation, mixture, or article to which the certificate relates wasreceived by the signatory personally in any case or (wherethe substance, preparation, mixture, or article was delivered ina sealed package or by registered post) by any other person (being aperson who works in an approved laboratory and who is authorised,by the analyst in charge of that laboratory, to receive it), from themember of the Police or employee of the Police Department or officerof Customs named in the certificate, and that upon analysis thatsubstance, preparation, mixture, or article was found to be or tocontain a particular controlled drug (whether of a specified or anunspecified weight) or a particular prohibited plant, or a particularpart of a particular prohibited plant, or a seed or fruit of a particularprohibited plant, specified or described in the certificate, shall untilthe contrary is proved be sufficient evidence—(a) Of the qualifications and authority of the person by whomthe analysis was carried out; and(b) Of the authority of the person who signed the certificate tosign that certificate; and(c) Of the facts stated in the certificate.(2A) Where the substance, preparation, mixture, or article was delivered ina sealed package or by registered post and received by any person (notbeing the person who signed the certificate but being a person whoworks in an approved laboratory and who is authorised, by the analystin charge of that laboratory, to receive it) from any person referred toin subsection (2) of this section,—(a) The person who made the analysis may give evidence ofreceipt by that other person of the substance, preparation,mixture, or article that is the subject of the analysis; and(b) Such evidence shall, in the absence of evidence to thecontrary, be admissible as sufficient proof of the properreceipt of the substance, preparation, mixture, or article bythe person who made the analysis.(3) A certificate referred to in subsection (2) shall be admissible inevidence only if—(a) At least 7 clear days before the hearing at which the certificateis tendered, a copy of that certificate is served, by or on behalfof the prosecutor, on the defendant and the defendant is atthe same time informed in writing that the prosecutor does notpropose to call the person who made the analysis as a witnessat the hearing; and(b) The defendant does not, by notice in writing given tothe prosecutor at least 3 clear days before the hearing, requirethe person who made the analysis to be called bythe prosecutor as a witness at the hearing.(4) Notwithstanding anything in subsection (3) of this section,a certificate referred to in subsection (2) of this section shall not beadmissible in evidence if the Court, either of its own motion or on theapplication of the defendant made either before or after thecommencement of the hearing, in its discretion directs that the resultof the analysis shall be disregarded unless that result is proved bythe oral evidence of the person who made the analysis.[5] In support of his application for recall, Mr Allen has provided a statement froma retired forensic scientist who was the head of ESR's Illicit Drugs Group in 1993.The scientist Mr Sutherland says that ESR's position at the time was that in order fora certificate of analysis to be admissible under s 31 of the Misuse of Drugs Act 1975,suspected illicit drugs should be delivered to ESR either by registered post or handdelivered by police. A letter Mr Sutherland wrote at the time also mentions a thirdoption to be used for larger items that could not be sent by registered post, namelyNZ Courier Post with signature required.[6] In Mr Allen's case, the police used Fastway Courier to deliver the materialseized from his properties to ESR. Because ESR had doubts about whether thismethod of delivery complied with s 31, it decided the evidence of the test resultsshould be given by the analyst rather than by means of a certificate.[7] The analyst in question duly prepared a written statement which Mr Sutherlandforwarded to police with a covering letter explaining that because the method ofdelivery (Fastway Couriers) did not comply with s 31, the items had not been certified.[8] In his witness statement, the analyst said he had received from Mr N Baker(Fastway Courier) personally a sealed cardboard box from Fastway Couriers bearingthe Fastway Courier label A705155. Attached to the box was an envelope containingan "Exhibits for Laboratory Examination" form. The box contained two large sealedplastic bags.[9] The statement goes on to describe the items from the plastic bags andthe results of the analysis. It is clear from the statement that both bags contained filereferences to Mr Allen. One bag had plant material and the other seeds and plantdebris. The contents were analysed. The seeds were found to be cannabis seeds andthe plant material was cannabis plant. We pause here to interpolate that Mr Sutherlandsays having reviewed the file that he is "quite satisfied" with the work done bythe analyst.[10] The form headed Exhibits for Laboratory Examination had been completed bythe officer who had despatched the bags. It bears his signature and underneath thatthe signature of the Fastway driver Mr Baker. The form records that seeds were foundat the rear of Mr Allen's house and that the first bag contains approximately 30,000seeds. It also states the second bag contained random samples taken from 1,250 plantslocated at Mr Allen's farm property as the result of a helicopter operation.[11] After receiving the witness statement, the police contacted Mr Sutherland torequest a certificate, saying they wanted to test the validity of Fastway Courierdelivery. A certificate of analysis was then provided. Its contents mirror those in thewitness statement.[12] According to Mr Allen, the prosecution only disclosed to his trial counsel, aQueen's Counsel, on the day of the hearing that they were relying on the certificateand not calling the expert. He also claims that although police knew the method ofdelivery was non-compliant, this was not disclosed to the defence or the Judge and asa result the validity of the certificate was never tested and challenged. It should havebeen excluded and without it there was no evidence the material was cannabis.[13] It is a condition of admissibility under s 31(3)(a) that the certificate must beserved on the defence seven clear days before the hearing at which the certificate istendered, and secondly that the defendant has not three clear days before the hearingrequired the analyst to be called as a witness. Service on the day of the hearing wouldobviously be a breach of that requirement and render the certificate inadmissible.[14] However, Mr Allen does not specify which hearing he is referring to.On the basis of the information currently before us, it would appear to be thedepositions hearing which according to a filenote of Mr Sutherland was on 15 April1993. The certificate was also tendered at two jury trials held well after the certificatewas served. The first jury trial was held in August 1993. The jury were unable toagree. The subsequent re-trial which resulted in a guilty verdict took place in January1994.[15] Significantly for present purposes, at the commencement of the trial in 1994,there was a formal admission made on behalf of Mr Allen under s 369 of the CrimesAct 1961 that the cannabis plants found growing on his farm property were in factcannabis and that seeds found at his residential property were in fact cannabis seeds.The decision sought to be recalled[16] The defence run at trial was that the cannabis had been cultivated by someoneelse or had self-sown from previous crops planted by the person who had soldMr Allen the property. As for the seeds located at his residential address, that had beenleft there by an associate.[17] On appeal, various arguments were advanced. They included challenges tothe lawfulness of the search, juror bias, and complaints about disclosure. This Courtfound none of the grounds of appeal had been made out. It noted that Mr Allen hadexpended much time and effort in pursuing his statutory right of appeal and apparentlyfelt a sense of injustice but concluded:2In the end however it was for the jury to decide whether his knowledge of andresponsibility for cultivation of the cannabis unarguably found on his propertywas established on the evidence at trial.[18] In his application, Mr Allen details the attempts he has made in the interveningyears to clear his name. He does not however mention a complaint he made tothe Independent Police Complaints Authority and the Authority's report. The fact ofthe complaint and the existence of a report is briefly mentioned in material providedby a private investigator working for Mr Allen. The reference suggests the complaintmay have included issues relating to ESR testing.Analysis[19] The scope of this Court's jurisdiction in criminal proceedings has recently beenclarified in the decisions of Urhle v R and Lyon v R.3[20] It is now established there are three categories of cases in which recall may begranted:(a) There has been a legislative change or new decision since the hearing.(b) A relevant authority or legislative provision was overlooked bythe Court whose decision is sought to be recalled.2 At 10.3 Urhle v R [2020] NZSC 62 at [25]–[29]; and Lyon v R (No 2) [2020] NZCA 430 at [8]–[9] citingHorowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.(c) For some other very special reason justice requires the judgment berecalled.[21] For important reasons of policy and principle explained in Lyon, recall isexceptional.4 And that is especially so where as in this case, the focus ofthe application is not this Court's decision but the trial itself and allegations ofnon-disclosure. Mr Allen has not exhausted the appeal process. He has a statutoryright to seek leave to appeal to the Supreme Court and he also has other avenuesavailable to him such as the prerogative of mercy and the Criminal Cases ReviewCommission.[22] Further, the argument about the inadmissibility of the certificate is notparticularly compelling. It faces some difficulties:(a) The certificate appears to have been provided to the defence well inadvance of the trial at which it was tendered.(b) The certificate itself disclosed that the exhibits had been delivered byFastway Courier.(c) The formal admission made by Mr Allen at the beginning of the 1994trial that the items found by police at his properties were cannabis.(d) The documentation including the witness statement prepared bythe analyst does not suggest any break in the chain of custody.(e) The analyst who tested the items and signed the certificate was the sameperson who personally received the items when they were delivered tothe laboratory. That was sufficient compliance with s 31(2).Mr Sutherland does not specify which part of s 31 he considers wasbreached. On the face of it, his interpretation of the provision appearsmisconceived.4 At [6].(f) ESR policy changed and not it seems in response to any amendment tos 31. Mr Sutherland states large items delivered by normal courier withsignature became acceptable. That being so, a claim that a miscarriageof justice has occurred because of the method of delivery is obviouslyproblematic.(g) Even if the certificate had been excluded and the analyst called to giveevidence, his signed written evidence was to the same effect asthe certificate.(h) Mr Allen's own evidence at trial. He testified that after the police raid,he himself found cannabis plots on his property. Further, that he knewthe seeds in the bag were cannabis seeds because that was whatthe associate had told him and that was why he told the associate toremove them immediately which as it turned out later he wronglythought the associate had done.[23] We are not persuaded there exists a very special reason warranting recall.[24] The application is accordingly declined.Solicitors:Crown Law Office, Wellington for Respondent