Keane v The Queen - [2015] NZCA 31

IN THE COURT OF APPEAL OF NEW ZEALAND

CA446/2014
[2015] NZCA 31

BETWEEN	JOLENE KEANE Appellant
AND	THE QUEEN Respondent

Hearing:	9 February 2015
Court:	Wild, MacKenzie and Lang JJ
Counsel:	Q Duff and GTR Duff for Appellant S K Barr for Respondent
Judgment:	27 February 2015 at 11.30 am

JUDGMENT OF THE COURT

The appeal against both conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Ms Keane was found guilty by a jury in the Auckland District Court on one charge of permitting premises to be used for the purpose of manufacturing methamphetamine.[1] On 26 June 2014, Judge Ronayne sentenced Ms Keane to two years imprisonment.[2] Ms Keane appeals to this Court against both conviction and sentence.

Background

[1]Misuse of Drugs Act 1975, s 12. Ms Keane was tried under the surname Tukuafu-Sheehan.

[2]R v Tukuafu-Sheehan DC Auckland CRI-2012-090-4685, 26 June 2014.

Ms Keane and her husband, Mr Tukuafu, were the tenants of a flat situated in Green Bay, Auckland. In January 2012, they had been living there for approximately two years.
On 23 January 2012, emergency services were called to a blaze at the address. A person matching Mr Tukuafu’s appearance was observed hurriedly leaving the address with another man before emergency services arrived. As he left Mr Tukuafu was overheard to say “It’s the oven”. Mr Tukuafu was subsequently treated for burns to his leg.
When the police examined the flat, they found numerous indicia suggesting the property had been used as a clandestine laboratory for the manufacture of methamphetamine. The police found precursor materials and substances including pseudoephedrine, hydrochloric acid, acetone, iodine and caustic soda. The police also found equipment commonly used in the manufacture of methamphetamine. These included a glass baking dish, a Buchner flask and coffee filters. The police also found a small quantity of methamphetamine, together with methamphetamine pipes.
The jury heard that the most likely cause of the fire was a flammable liquid vapour explosion, originating on the kitchen stove. Fuelite and acetone, both of which were found at the scene, are highly flammable substances. The expert evidence at trial was to the effect that, although the damage caused by the fire meant it was not possible to determine whether the manufacture of methamphetamine had been completed, the items found at the address were consistent with the extraction of pseudoephedrine having taken place. According to the expert evidence, methamphetamine is most commonly manufactured from pseudoephedrine in New Zealand.
Mr Tukuafu was charged with being in possession of material, equipment and precursor substances capable of being used in the manufacture of methamphetamine. The jury found him guilty on those charges.[3] Initially he was also charged with manufacturing methamphetamine, but the Crown consented to his discharge on that count prior to trial because there was insufficient evidence to confirm the manufacture of methamphetamine had been completed. A charge of attempting to manufacture methamphetamine was substituted in its place, but the jury was unable to reach a verdict…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keane v The Queen

Details

AGLC: Keane v The Queen [2015] NZCA 31
Case: [2015] NZCA 31
Decision Date: 27 February 2015 at 11.30 am

CaseChat Overview and Summary

In the case of Keane v The Queen, Ms Keane appealed both her conviction and sentence, following her conviction in the Auckland District Court of permitting premises to be used for the purpose of manufacturing methamphetamine. The appeal was dismissed by the Court of Appeal of New Zealand, with Wild, MacKenzie, and Lang JJ delivering judgment. The appeal against conviction was based on the argument that the trial judge had amended the charge during his summing up to the jury, allowing them to find Ms Keane guilty if they were satisfied beyond reasonable doubt that the premises had been used for the manufacture or attempted manufacture of methamphetamine. However, the Court of Appeal found that it was not necessary for the charge to be amended to refer to the attempted manufacture of methamphetamine, as it was irrelevant whether the manufacturing process had reached the point where methamphetamine was actually produced. The appeal against sentence was based on the argument that making premises available for an attempted manufacture of methamphetamine should be regarded as being less culpable than making them available for the actual manufacture of methamphetamine. However, the Court of Appeal found that the sentence imposed by the trial judge was well within the range of those imposed in other like cases.

The final orders of the court were that the appeal against both conviction and sentence is dismissed. The Court of Appeal upheld the conviction and sentence of Ms Keane for permitting premises to be used for the purpose of manufacturing methamphetamine. The Court of Appeal found that the trial judge's summing up to the jury did not amount to an amendment of the charge, and that the sentence imposed was appropriate in the circumstances. The appeal was therefore dismissed in its entirety.

Orders