Chase v The King
[2023] NZHC 3494
•4 December 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-463-06
[2023] NZHC 3494
BETWEEN LESAH CHASE
Appellant
AND
THE CROWN
Respondent
Hearing: 10 November 2023 Appearances:
R Mansfield KC for the Appellant M Tutton-Harris for the Crown
Judgment:
4 December 2023
JUDGMENT OF HARVEY J
This judgment is delivered by me on 4 December 2023 at 11 am.
.....................................................
Registrar / Deputy Registrar
Counsel:
R Mansfield KC, Auckland
Solicitors:
Pollett Legal Ltd, Tauranga
CHASE v THE CROWN [2023] NZHC 3494 [4 December 2023]
Introduction
[1] Lesah Chase was convicted of possession of methamphetamine for supply following a Judge-alone trial in the District Court at Whakatāne before Judge I D R Cameron on 18 March 2022.1 She appeals her conviction, claiming that the learned Judge erred when assessing the evidence such that a miscarriage of justice occurred.
Facts
[2] On 7 June 2021, Police executed a search warrant at the address of Ms Chase and her partner Pomare Pirini. The warrant was executed against Mr Pirini, who was a person of interest in “Operation Van”. He is said to be a patched member of the Comancheros. At the time, no one was home. A cordon was set up at the end of the street. Police observed Mr Pirini’s Toyota Hilux drive past and pursued it. Ms Chase was the driver. She was stopped and questioned about the whereabouts of Mr Pirini. Meanwhile, Mr Pirini was stopped on the opposite side of the road. With him was their two year old child. Ms Chase retrieved the child from Mr Pirini. She requested a nappy bag from the vehicle she had been driving.
[3] Police took the nappy bag from the rear passenger footwell. It contained two nappies and a folded changing mat. Underneath the changing mat were zip lock bags containing methamphetamine. Ms Chase then changed her son’s diaper on the side of the road. The methamphetamine weighed a total of 167.1 grams in 28 gram (“ounce”) increments. Ms Chase denied knowledge of the methamphetamine.
[4]Text messages between Mr Pirini and Ms Chase were intercepted as follows:
Pirini: Babe carry on Past
Babe
???
Chase: They following
I’m going opo Pirini: They follow? Chase: Yup
Pirini: You got internet? Chase: Yup
Pirini: Go on IG
1 R v Chase [2022] NZDC 5052.
Are they right behind you? Yes
Babe
I’ll pull up at new world Babe
I’ll pull up at new world IG
[5] At trial Ms Chase’s evidence was that the three of them had been on a weekend trip to Mr Pirini’s house. The nappy bag was already in the vehicle before they left. It was infrequently used and topped up by both Ms Chase and Mr Pirini. Ms Chase packed a separate overnight bag with nappies and wipes that was used throughout the weekend. The family returned on Sunday. On Monday 7 June 2021, all three drove into town to shop. Mr Pirini packed the shopping into the car.
[6] They then drove to Whakatāne to pick up Mr Pirini’s work vehicle. She stayed inside the vehicle. Their child insisted on going with his father so Mr Pirini and their son travelled together while Ms Chase remained in the Hilux. Ms Chase’s evidence as to why she did not stop at the house and instead drove past was that she was shocked at the sight of armed Police and did not want her son to see that. She stated that she decided to meet up with Mr Pirini and understand what was happening at the house.
[7] Regarding the interaction with Police, Ms Chase stated that their child was wet and it had soaked through his pants. After she requested the diaper bag she changed him on the side of the road. This evidence was not challenged.
District Court decision
[8] The Judge considered it relevant that Ms Chase typically used the Toyota Hilux; Mr Pirini had his own work vehicle. She was the only one driving it over the weekend. Secondly, the Judge found Ms Chase’s reasons for not stopping at her property “entirely unconvincing”. Mr Pirini and their child were ahead of her, so she had no control over whether Mr Pirini with her son would stop at the scene. Instead, Mr Pirini text messaged her a direction to “carry on” and not stop for Police. The Judge found that Ms Chase and Mr Pirini both made a decision not to stop at their property because of the large number of Police present, which pointed to guilty knowledge on the part of Ms Chase. In addition, he found wanting to be with her son
was not an innocent explanation for failing to stop. The Judge found that the fact they agreed to proceed to Ōpōtiki meant they were actively avoiding Police. He considered this “totally consistent” with Ms Chase having knowledge that her vehicle contained a bag with a large quantity of methamphetamine.
[9] Thirdly, the Judge noted the absence of any questions by Ms Chase of Mr Pirini, which he said, “would have been the natural reaction of an innocent person”. Instead, the Judge found the two colluded to continue to Ōpōtiki in an effort to avoid apprehension and the discovery of the drugs. Fourthly, the Judge highlighted that there was no evidence pointing to the reasonable possibility of a third person secreting the methamphetamine into the nappy bag. Fifthly, the Judge considered it was consistent with guilty knowledge that Ms Chase requested the nappy bag from the car. She knew the vehicle was to be impounded and as a consequence searched. The Judge found that Ms Chase asked the officer to bring the nappy bag to her so that she could take it away and avoid it being discovered by Police.
[10] Accordingly, the Judge found that Ms Chase had knowledge, possession and control of the methamphetamine found in the nappy bag. Further, the quantity of methamphetamine found, 167.1 grams, meant that under s 6(6) of the Misuse of Drugs Act 1975 there is a presumption that the possession was for supply, and the Judge found the presumption had not been rebutted.
Appellate approach
[11] An appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011, which relevantly provides:
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)…
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[12] An appeal against conviction entered following a Judge-alone trial is by way of rehearing.2 If the appellate court comes to a different view of the evidence, the trial judge will have erred. It is, however, for the appellant to show that an error has been made. Furthermore, the appellate court will be aware of the advantages of the trial judge in assessing the evidence. Where credibility findings are at issue, the appellate court will accordingly exercise “customary caution”.
[13] For the appeal to be allowed, the error must be one that has created a real risk the outcome of the trial was affected. A real risk arises if there is a reasonable possibility another verdict would have been reached.3
[14] The trial judge is required to give reasons that “show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion”.4 However, perfection of expression is not required and the depth of reasoning required will invariably depend on the complexity of the issues and the type of case.5
Grounds of appeal
[15] Ms Chase’s appeal is based on two principal grounds. Firstly, that there was insufficient evidence before the District Court to satisfy the legal elements of possession. Secondly, that the Judge erred in applying the presumption of supply given Ms Chase was found to be at a “lesser role” than the principal offender.
2 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
3 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1; Misa v R [2019] NZSC 134, [2020] 1 NZLR 85;
and Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189.
4 Sena v Police, above n 2, at [36].
5 At [37].
Was possession proved?
Appellant’s submissions
[16] Mr Mansfield KC referred to R v Larsen.6 In that case two men sitting in a car were approached by Police, and as one of them was agitated, Police decided to do further checks. While the officer was on the radio at his car, both men were standing behind their car on the passenger side. An object was dropped and kicked under the car. It was a bag containing methamphetamine. Wylie J discharged both men, who had both been charged as principals, at the conclusion of evidence at trial. The Judge held that there was no evidence that the methamphetamine was in the possession of both men; if it was in the possession of one man there was no evidence of knowledge on the part of the other and vice versa. Accordingly, it would be speculative for the jury to conclude that one or both men were guilty.
[17] Mr Mansfield submitted there was an “irresistible inference” available to the trial Judge that the drugs belonged to Mr Pirini. Counsel emphasised that there was no evidence as to the last time the nappy bag was accessed by Ms Chase. It was an infrequently used emergency bag used by both Ms Chase and Mr Pirini. He opined that in light of Mr Pirini being the main target for Operation Van, the decision to charge Ms Chase as a sole principal may have been designed to “place pressure on Mr Pirini” to take responsibility for the drugs. While Ms Chase did not expressly state they belonged to Mr Pirini, if she denied possession and there was no evidence of third party involvement that only pointed to the very real possibility of Mr Pirini being the one in possession.
[18] Secondly, Mr Mansfield contested that guilty knowledge could be inferred from Ms Chase’s decision not to stop at the property. Counsel pointed to the fact Ms Chase was in shock, she had received a message from Mr Pirini to carry on driving, and she had no legal obligation to stop. He emphasised that she did comply and stop once pursued. In addition, counsel submitted no weight was given to Ms Chase’s behaviour being driven by the stress and anxiety of being separated from her child. Accordingly, he submitted that the finding Ms Chase was actively avoiding Police due
6 R v Larsen High Court 23 March 2009 CRI-2007-019-9621.
to her knowledge of possessing controlled drugs was not properly available or was afforded undue weight.
[19] Thirdly, counsel contended that to expect Ms Chase to immediately question Mr Pirini for an explanation for the Police attendance was unfair and did not point to guilt. In counsel’s submission there were plenty of innocent reasons why someone would not do so. Fourthly, Mr Mansfield submitted Judge Cameron erred by finding Ms Chase requested the nappy bag to conceal its contents from Police. There was uncontested evidence that her child had a wet nappy which had soaked through his pants, and that she in fact changed him on the side of the road.
Respondent’s submissions
[20] Ms Tutton-Harris submitted that the Judge provided a rational and considered basis for his findings. Counsel contended the Judge was entitled to infer, from all the circumstantial evidence taken together, that Ms Chase had knowledge of the methamphetamine. She distinguished Larson on the basis that in that case there was insufficient evidence to prove which of the accused had possession over the drugs, not whether anyone had. Any conclusion reached by a jury would involve guessing as there was insufficient evidence as to who had control.
[21] Counsel pointed out there was no evidence of third-party involvement. She argued that the Judge was entitled to place more weight on the evidence indicating Ms Chase’s possession and less on evidence from Ms Chase that Mr Pirini also had access to and use of the nappy bag and her vehicle. Although the Judge did not explicitly canvas the possibility that Mr Pirini was instead responsible for the methamphetamine, he clearly would have turned his mind to the possibility, in counsel’s submission. Ms Tutton-Harris submitted there was simply insufficient evidence to reasonably conclude Mr Pirini was instead in possession of the methamphetamine and thus create a reasonable doubt of Ms Chase’s guilt.
Discussion
[22] To establish possession, two elements must be proved.7 First, that Ms Chase was in actual or potential physical custody or control of the drugs. Secondly, that she was aware the substance was within her possession and had an intention to exercise possession. Put another way, she must be “knowingly in control [of the substance] in circumstances which showed [she] was assenting to being in control of it”.8 The drugs were found in Ms Chase’s car, so it is the second element that was the key trial issue.
[23] The Judge made five key factual findings which established Ms Chase’s knowledge. First, he found that Ms Chase requested the nappy bag from the officer because she wanted to prevent the methamphetamine from being discovered. Reasonable minds could differ on the veracity of the alternative interpretation, that Ms Chase requested the diaper bag because she had no knowledge of the drugs, and therefore brought it to the attention of the officer, which she would not have done if she knew it contained drugs.
[24] However, the factual finding was available to the Judge and not untenable on the evidence. The methamphetamine was located under a “mat” at the bottom of the bag and was therefore concealed to a degree. It is possible Ms Chase thought the bag would pass a quick “glance check” by an officer and therefore she could conceal the drugs from the search of her car that was being carried out.
[25] This finding indicates knowledge of what was in the bag. The fact her son was indeed wet and Ms Chase went on to change him does not invalidate the Judge’s finding. It could have coincidentally been the case, and Ms Chase took advantage of the situation to uplift the bag. This finding alone is sufficient to establish knowledge. It was supported by two pieces of evidence that could not be disputed: that the Hilux was primarily Ms Chase’s vehicle and she was the only one driving that weekend, and there was nothing pointing to the reasonable possibility of a third person (i.e., not Ms Chase or Mr Pirini) secreting the drugs in the nappy bag.
7 R v Cox [1990] 2 NZLR 275.
8 At 278, citing R v Warner [1969] 2 AC 256 at 289.
[26] I consider it was available on the evidence for the Judge to make the remaining factual findings: that the reason for Ms Chase driving past the Police search was because she had knowledge of the drugs in her car and did not want them to be discovered, and that she did not question Mr Pirini about the Police search because she knew they were looking for drugs such as the methamphetamine in her car. It should be noted the District Court Judge had the benefit of hearing the witnesses at trial and assessing their credibility in person.
[27] Even if the Judge had accepted Ms Chase’s evidence on these two points, this would not have been sufficient to raise a reasonable doubt. Ms Chase could have not stopped at the home address, which was being searched, because the first thing on her mind was that she was worried about her son. This does not preclude her also knowing there were drugs in the car and it would be better to stay away from the address. Put another way, even if that were her reason for failing to stop it would not have created a reasonable doubt as to knowledge.
[28] Secondly, even if Ms Chase did not ask Mr Pirini any questions about what was happening at the address because she was shocked and didn’t know what was going on, and because she trusted Mr Pirini, this too does not raise a reasonable doubt as to knowledge. Even if it were true that an innocent person in these circumstances may not have asked their partner what was happening, that is merely a neutral factor. A person could not question their partner either because they were oblivious but trusted their partner or because they knew what was happening so did not need to ask. It is entirely possible that Ms Chase did not expect the search of her address and was shocked by that. That does not negate the fact she knew about the drugs that were in her car.
[29] Finally, even if Ms Chase had explicitly pointed to Mr Pirini as being the “true” possessor of the drugs, it would have still been open to the Judge to find she was a joint possessor.9 The evidence raised at trial that Mr Pirini had opportunity to place the drugs into the nappy bag does not establish the reasonable possibility that Ms Chase was totally ignorant as to the existence of the drugs in light of all of the
9 Mathew Downs (ed) Adams on Criminal Law — Offences and Defences (online ed, Thomson Reuters) at [MD6.19(7)].
evidence. This therefore distinguishes R v Larsen because in the present case, unlike that case, possession by one person was not mutually exclusive with possession by the other.10
[30] Ultimately, I agree with the Crown’s submission that the Court of Appeal’s reasoning in R v Seekamut is applicable regarding the Judge’s factual findings here:11
[21] Counsel has raised many possible alternative inferences consistent with innocence, and has argued that those inferences must be preferred. If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The [fact-finder’s] function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable. …
Was the presumption of supply applied correctly?
Appellant’s submissions
[31] Mr Mansfield submitted that the presumption of supply only applies to a principal party.12 However, counsel contended that the Judge found that Ms Chase and Mr Pirini colluded together in an effort to avoid apprehension and discovery of the drugs. He argued the sentencing notes further supported the notion that Ms Chase’s role was a secondary one with the Judge finding she played a “lesser role” and that she may have possessed the methamphetamine on behalf of others, with no suggestion she possessed it for supply. Accordingly, Mr Mansfield submitted there had been an error of law.
Respondent’s submissions
[32] Ms Tutton-Harris submitted that the determination of Ms Chase playing a lesser role was made at sentencing, not in the reserved decision on conviction. The finding was made in accordance with the sentencing guidelines in Zhang and Berkland. Ms Chase had already been found guilty as a principal of the elements of
10 R v Larsen, above n 6.
11 R v Seekamut CA82/03, 10 July 2003.
12 R v Samuels [1985] 1 NZLR 350 (CA); and Stewart v R [2011] NZSC 62, [2012] 1 NZLR 1.
the charge. In short, the sentencing notes do not affect the presumption of supply established at trial.
Discussion
[33] In summary, I agree with Ms Tutton-Harris’ submission. Any finding as to the appropriate sentencing range has no bearing on the conviction itself.
[34] Taking a pragmatic look at the overall context, it is somewhat unusual that Mr Pirini was not charged as a party to the offending or as the principal. However, a factual finding that Ms Chase and Mr Pirini colluded together to prevent Police locating the methamphetamine does not preclude Ms Chase being a principal party to the offending. Ultimately, she was the only person charged in relation to the offending.
[35] Returning to my earlier point, had Mr Pirini been charged it still would have been possible on the facts for the Judge to find that Ms Chase was a joint possessor. The presumption of supply applies to joint possessors. The onus was on Ms Chase to rebut the presumption of supply. As her case was focused on knowledge, she did not bring any evidence to do so. Accordingly, my conclusion is that there is no miscarriage of justice.
Decision
[36]The appeal against conviction is dismissed.
Harvey J
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