Albert v The Queen
[2011] NZCA 554
•4 November 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA241/2011 [2011] NZCA 554 |
| BETWEEN NIKITA TIARA ALBERT |
| AND THE QUEEN |
| Hearing: 31 October 2011 |
| Court: Harrison, Miller and Asher JJ |
| Counsel: M W Ryan for Appellant |
| Judgment: 4 November 2011 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Nikita Albert was found guilty following a trial before a Judge and jury in the District Court on one count of possessing methamphetamine for supply. She was convicted and sentenced to a term of 18 months imprisonment.[1] Separately she pleaded guilty to one charge of possessing a methamphetamine pipe.
[1] R v Albert DC Manukau CRI-2010-092-5664, 28 June 2011.
Ms Albert appeals against her conviction for possessing methamphetamine for supply on the ground that there was insufficient evidence to support the jury’s verdict and it was thus unreasonable. She does not appeal against her sentence.
Facts
Ms Albert was a passenger in a motor vehicle which ran out of petrol one evening on a highway on-ramp in South Auckland. Two police officers arrived. One smelt cannabis as he approached. He invoked his powers to carry out a warrantless search of the vehicle.[2]
[2] Misuse of Drugs Act 1975, s 18(2).
There were two male and two female occupants of the vehicle. One officer, Constable Turner, instructed them to leave the car and sit on the kerb nearby. He observed Ms Albert emerge from the left rear passenger’s side and stand apart from the other three in a muddy patch at the rear of the vehicle for about 15 seconds. She then joined the others at the kerb. Constable Turner thought that Ms Albert’s action was odd. He could not understand why she would deliberately stand in a muddy area when wearing high white boots.
Shortly afterwards Constable Turner walked over to the muddy area where he had seen Ms Albert standing by herself. With the assistance of torch light he located a small plastic snap lock bag on the ground. It was white and very visible against the green and black background. Inside the bag was white crystalline powder. A subsequent ESR analysis showed that it contained 2.2 grams of methamphetamine.
Constable Turner showed the bag to Ms Albert. She did not reply to his enquiry about whether it belonged to her. He then asked the group about ownership but again nobody responded. The officer repeated his specific enquiry to Ms Albert about whether the item belonged to her. She responded: “how could you smell cannabis, I haven’t smoked any of that today”.
Constable Turner then searched the vehicle. In the rear left hand seat where Ms Albert had been sitting he located a black leather looking handbag. Ms Albert admitted that it was hers. Inside the bag was a wallet containing $665 in cash and a small red notebook containing many names, cash denominations and phone numbers. There was also a bag containing electronic scales with methamphetamine residue, a butane gas burner torch, a sealed white envelope within which was a snap lock bag with .2 grams of methamphetamine and a glass pipe with methamphetamine residue.
Later Ms Albert attempted to seize the handbag from Constable Turner. She said she wanted to give it to her friend.
Ms Albert did not give evidence at trial or call witnesses in her own defence.
Appeal
In R v Owen[3] the Supreme Court reviewed the principles governing an appeal on the ground that a verdict is unreasonable within the meaning of s 385(1)(a) of the Crimes Act 1961. In summary these principles are relevant to Ms Albert’s appeal: (1) an appellate Court is performing a review function and is not substituting its own view of the evidence; (2) the weight to be given to individual pieces of evidence is essentially a jury function; (3) appellate Courts should not lightly interfere where the jury is the body charged under our judicial system with the function of finding facts; (4) an appellate Court is not conducting a retrial on the written record; and (5) a verdict would only be unreasonable where no jury having regard to all the evidence could reasonably have been satisfied of guilt to the standard of beyond reasonable doubt.
[3] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13]–[17].
Mr Ryan, who did not appear for Ms Albert at trial, submits that the verdict was unreasonable because the evidence about Constable Turner’s discovery of the bag of methamphetamine in the muddy area outside the car was equivocal and there was no rational basis for the jury to conclude beyond reasonable doubt that it belonged to and was in Ms Albert’s possession prior to its disposal.
Mr Ryan postulates three available possibilities: (1) the bag belonged to Ms Albert; (2) the bag belonged to one of the other three vehicle occupants; (3) the bag was deposited by somebody unrelated to Ms Albert and the other passengers. He concedes that the third possibility was remote. Thus, in logical terms, Mr Ryan’s argument comes down to a proposition that the jury could not reasonably exclude the second possibility and that its verdict must be based upon speculation.
Decision
In summary, this circumstantial evidence was available to the jury as pointing towards Ms Albert’s possession of the methamphetamine bag: (1) Ms Albert’s actions in going alone to a muddy area which attracted Constable Turner’s attention; (2) her presence in that area for at least 15 seconds without any apparent purpose; (3) Constable Turner’s discovery shortly afterwards of the bag of methamphetamine in the area where she was previously standing; (4) Ms Albert’s failure to deny that the bag belonged to her when twice questioned by Constable Turner immediately after its discovery; and (5) her admission of ownership of a handbag which contained a methamphetamine pipe, a large quantity of cash, a tick book, scales and other paraphernalia consistent with methamphetamine dealing.
Mr Ryan was unable to identify any evidence which might have possibly implicated one of the three other vehicle occupants as being in possession of the methamphetamine bag. While he challenged pieces of evidence, he was unable in the absence of contrary evidence to impugn their reliability or credibility. Mr Ryan was really questioning the weight to be given to isolated facts, which was quintessentially the jury’s function, without undertaking an objective assessment of the cumulative effect of the evidence as a whole. When that exercise is carried out, there was plainly a sufficient factual foundation for the jury to infer Ms Albert’s guilt.
We are not satisfied that Mr Ryan’s argument approaches the threshold necessary to call the jury’s verdict into question on the ground of unreasonableness.
Result
Ms Albert’s appeal is dismissed.
Solicitors:
Crown Law Office, Wellington, for Respondent
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