B v Police HC New Plymouth CRI 2008-443-17

[2008] NZHC 1368

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2008-443-17

B, N AND H

Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 August 2008

Counsel:         J Hannam for Appellants

T Walls for Respondent

Judgment:      2 September 2008 at 4.00 p.m.

JUDGMENT OF SIMON FRANCE J

This judgment was delivered by Justice Simon France on 2 September 2008 at 4.00 p.m. pursuant to r540(4) of the High Court Rules 1985.

B, N AND H V NEW ZEALAND POLICE HC NWP CRI 2008-443-17  2 September 2008

The evidence

[1]      H  ,  B   and  N    were  convicted  of possessing packets of Codral tablets with the intention that they be used in the manufacture of methamphetamine.

[2]      The allegation was that on a single day Ms H   and/or Ms B   made a total of 7 visits to 5 chemist shops seeking Codral tablets.   They succeeded in getting 3 packets.  Ms N   was linked to the offending by virtue of text messages sent on the day to Ms B  .  Those messages could be seen as being purchase orders.

[3]      Ms H   gave a video interview in which she confirmed the pills were being purchased for other unnamed people.  At trial she resiled from this, saying she was tired and just said anything to get it over with.   She testified that she had a medical condition that was assisted by Codral, and produced letters from three health professionals which could be seen as consistent with the claim that Codral was a medication that would assist her.

[4]      Ms B   gave a brief oral interview admitting that the pills were being purchased for others.  At trial she also resiled, citing the same difficulty of tiredness and agreeing to anything put to her.   Her purchases were claimed to be for her unwell partner.

[5]      Nichole N   is Ms H  ’s daughter.  She explained the texts concerned not  pills  but  rather  were  about  ready  to  drink  alcohol  bottles  that  were  to  be purchased for a party.  Both other accused likewise explained the texts as relating to alcohol.

[6]      The case was somewhat unusual in that the whole prosecution case was by way of handed up deposition statements with no oral evidence.   The prosecution evidence was therefore accepted unchallenged, although Ms H   proceeded to contest some of the alleged visits.

[7]      In her decision the District Court Judge rejected the explanations given by the three women as to why they were purchasing the drugs.  The Court accepted that the inferences sought by the prosecution should be accepted as proved, and entered convictions.

[8]      The challenge on appeal is that  the  Judge  did  not  focus  on  the  specific intentions that needed to be proved.  Putting the accused’s explanations to one side, it still needed to be proved that the pills were being brought to enable someone else to use them in the manufacture of methamphetamine.  It is not suggested the women were themselves making it.  Mr Hannam accepted that the situation plainly looked suspicious, but submitted the evidence was insufficient to support the inference as to the intended use.   Even if one got to accepting purchase was for someone else, nothing pointed to a methamphetamine manufacturing destination.

[9]      The points made concerning the judgment under appeal are all variants on this theme and do not particularly need separate elaboration.  For example, it is said the Court did not separately identify and focus on this aspect in the ruling.   I will consider these points to the extent needed once the key ground is determined.

[10]     I have briefly summarised the prosecution case, but some further detail is needed.

[11]     There appear to have been two periods of endeavour.   Between noon and

1 p.m., visits were made to 3 pharmacies.   On each occasion Ms H   went in seeking  Codral;  when  directed  to  non-pseudoephedrine  based  alternatives,  these were rejected.  On the first occasion Ms H   ran out of the shop.  On the second occasion she said she “didn’t want to waste $19” on some medication that her friend would not use.

[12]     One of these three visits was successful.  Ms H   lacked identification but left and then returned to the pharmacy with Ms B   who produced a driver’s licence and was able to purchase a box of 48 tablets.

[13]     The next phase is between 3.30 p.m. and 5.00 p.m. the same day.  The first visit seems to have been to the original chemist from which Ms H   had run out in the morning.  This time Ms B   went in, but the chemist recognised the car and the efforts were unsuccessful.

[14]     The next two known chemist visits yielded success – at 3.49 p.m. and at

4.33 p.m.  purchases  of  48  and  24  tablets  respectively  were  made.    Finally  at

5.00 p.m. there was another unsuccessful attempt at a different pharmacy where Ms H   was seen, when leaving, to get into the same car and immediately make a call on her cellphone.

[15]     A characteristic of these visits to the chemist was that on each occasion non-pseudoephedrine based alternatives were rejected.  Some significance can also be attached to the “$19” comment of Ms H  .  Not only is that approximately the price for a packet of 24, but it was a figure later used by Nichole N   in her texts.

A flavour of those texts can be gathered from these examples:

a)	At 1531 –	“You got 120. Gt 5. And 20 petch.  Got it” (“Petch” is apparently text speak for petrol)
b)	At 1531 –	“Yeah gt 5 of da 19 dollar I’s …”
(15 minutes later a Codral purchase is made)
c)	At 1618 –	“…Did she get the gear”
d)	At 182   –	“Weaz mum at?  Been a while.  Need dat shit delivered…”
(The delay was because by then the two women had by then been arrested).

[16]     Recitation of the evidence (which has not touched on the admissions by two of the accused that the purchases were on behalf of others) is sufficient to dispose of the appeal.  The starting point, accepted by Mr Hannam, is that it was open to the Judge to reject the innocent explanations.   That done, the issue is whether this evidence is enough to support the charge.  In my view the overwhelming answer is

“yes”.  Courts are not required to ignore reality, and imagine fanciful alternatives. The furtive conduct, the consistent rejection of non-pseudoephedrine alternatives, the fact that Ms B   had not used any of the tablets she had bought, the number of tablets bought on the one day, the number of chemist visits, and the on-going text traffic paint a picture of photographic clarity.

[17]     Turning to the judgment, the Judge’s initial and primary focus was to assess the innocent explanations, and to explain why they were not accepted by the Court. Interwoven in that discussion are firm inferences being drawn about the true nature of the activity.  The reasoning on why each explanation is rejected is clear and, with respect, compelling.

[18]     That done, the Judge sets out her final paragraph which reads:

“[17]    The defendants have failed to raise any reasonable doubt about the police allegations.  It is the duty of the prosecution to prove the ingredients of the charges beyond reasonable doubt.  I am satisfied that the prosecution has provided adequate proof to that standard and that the intent of the defendants can be discerned from their actions.   The charge is approved, defendants convicted.”

[19]     It is true that the paragraph  does  not  detail  the  matters  that  support  the inference and does not separately address the ultimate purpose limb of the offence, but  these  matters  have  been  implicit,  and  at  times  express,  in  the  preceding discussion of the evidence.   The Judge had correctly identified the charges at the outset.  In my view, once the innocent explanations are rejected, the allegation is so plainly established that it is not surprising the Court did not spend too long articulating the obvious.

[20]     Accordingly the appeal is dismissed.

Simon France J

Solicitors:

T Walls, Auld Brewer Mazengarb & McEwen, PO Box 738, New Plymouth, email: [email protected]

J Hannam, Barrister, PO Box 8152, New Plymouth