Kemp v The Queen
[2011] NZCA 46
•7 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA174/2010 [2011] NZCA 46 |
| BETWEEN THOMAS ASHLEY KEMP |
| AND THE QUEEN |
| Hearing: 21 February 2011 |
| Court: O'Regan P, Chisholm and Priestley JJ |
| Counsel: S Jefferson for Appellant |
| Judgment: 7 March 2011 at 10.30 am |
JUDGMENT OF THE COURT
ATime for lodging the appeal is extended.
BThe appeal is dismissed.
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REASONS OF THE COURT
(Given by Chisholm J)
Introduction
Following trial in the District Court at Napier the appellant was found guilty by a jury on three counts: possession of material for the manufacture of methamphetamine, possession of precursors, and possession of equipment for the manufacture of methamphetamine. He was sentenced by Judge Mackintosh to two years and four months imprisonment.
The appellant appeals against conviction on the ground that there was insufficient evidence upon which the jury could convict. The appeal is approximately eight months out of time. A satisfactory explanation for the delay was provided in the notice of appeal and we accordingly extend the time for lodging the appeal.
Background
When the police executed a search warrant at the defendant’s Napier address in December 2007 they found cannabis growing at the property. They also discovered utensils connected with that activity. In addition, the police located precursor substances as well as material and equipment that they suspected had been used in the manufacture of methamphetamine.
Initially the appellant was charged with, and pleaded guilty to, the cultivation of cannabis, possession of cannabis, and the possession of utensils. A community based sentence was imposed. Later, the appellant was charged with manufacturing methamphetamine and the three charges giving rise to this appeal. No evidence was offered on the manufacturing charge and the three possession charges went to trial.
The trial
Police officers gave evidence that during the search they had discovered sodium hydroxide, hydrochloric acid and toluene at the premises, as well as materials and equipment that are often associated with the manufacture of methamphetamine. The equipment included a distillation unit, an adaptor, a purifying respirator, a glass baking dish lid, jugs, plastic bottles and tubing, coffee filters and two electronic digital PH meters.
Expert evidence described the process of extracting pseudoephedrine from cold and flu preparations and then converting it to methamphetamine. Evidence was also given about the part that could be played by the chemicals, materials and equipment found at the premises. There was also evidence that at some stage pseudoephedrine had been extracted but the evidence could not establish when or where this had happened. Testing did not reveal the presence at the premises of any chemicals or drug residues relevant to the production of methamphetamine.
Many of the items were found in a caravan located on the property. When the search was carried out the appellant acknowledged that the caravan and its contents belonged to him. He provided the police with a key for the caravan and unlocked the combination lock on the door. Apart from the items found in the caravan there were items associated with the manufacture of methamphetamine at other locations on the property. The appellant denied that the items in the caravan and elsewhere on the property belonged to him.
A detective senior sergeant gave evidence that he had supervised a search of the same property in 2004 during which toluene and pseudoephedrine were located. His evidence was that Richard Te Rure had been charged with offending as a result of that search and had been in prison since 2004 The senior sergeant said that he was confident that no other items used in the manufacture of methamphetamine were present at that time.
The appellant gave evidence. He said that Richard Te Rure was his son-in-law and that he and his family had moved back to the address in May 2005 (after Mr Te Rure had left). When they resumed occupation there was a caravan on site which had been there when the property was occupied by Mr Te Rure. We will describe this as the “first caravan”. Mr Kemp said that he moved a second caravan onto the property about February or March 2007.
His evidence was that when they were having a clean up in about June 2007 he discovered the items giving rise to the three charges in the first caravan. Up to that time he was unaware that the items were in the caravan. He acknowledged that he had a fair idea that they were associated with the manufacture of methamphetamine and he moved them into the second caravan “because of all the kids”.
Under cross-examination the appellant acknowledged that at the time he had discovered the items in the first caravan he had put a plastic bottle of toluene in an unlocked garden shed. However, he denied that children would have been able to get at it in the shed.
When pressed under cross-examination about why he had not contacted the police when he discovered the items in the first caravan, the appellant said that his mother and mother-in-law had died within eight days of each other and “when you’ve got a funeral on you know, all more, all more worried about the funeral”. Later, he was asked why he did not go to the police after the funeral. His response was “out of sight, out of mind. Just forgot all about it.”
The appellant’s wife also gave evidence about the police search in 2004. She had been at the property with her son, Richard Te Rure, at the time. She questioned the thoroughness of the police search.
This appeal
For the appellant Mr Jefferson emphasised that there was no evidence, first, as to when or where the pseudoephedrine had been extracted, secondly, that methamphetamine had been manufactured at the premises, and thirdly, of any traces or residues indicating the presence of pseudoephedrine or methamphetamine at the premises. He noted that the police could not rule out that the items found during the 2007 search had been there in 2004. This, he submitted, supported the appellant’s explanation that the items found on the site in 2007 related to Mr Te Rure’s earlier activities in 2004.
Counsel submitted that rather than being asked to draw allowable inferences from known facts, the jury had been asked to speculate in order to bridge evidential gaps. He argued that while at its highest the evidence might support the inference that the appellant was in possession of material which he knew could be used for the purpose of manufacturing methamphetamine, there was an enormous leap from possessing material “knowing” it could be so used to possessing material “intending” it to be so used. Moreover, submitted Mr Jefferson, the state in which the items had been found and the appellant’s acknowledgment to the police that he had put the items in the caravan demonstrated the absence of a guilty mind.
Finally, Mr Jefferson argued that the fact that the jury had difficulty in establishing the appellant’s intent is borne out by the two questions asked by the jury. He noted that both those questions related to the issue of intent.
Discussion
In Owen v R,[1] the Supreme Court endorsed that an appellant who invokes s 385(1)(a) of the Crimes Act 1961 must recognise that the appellate Court is performing a review function, not one of substituting its own view of the evidence. When conducting that review appropriate weight must be given to such advantages as the jury had over the appellate Court, including the ability to assess the honesty and reliability of witnesses. The weight to be given to individual pieces of evidence is essentially a jury function, reasonable minds may disagree on matters of fact, and appellate Courts should not lightly interfere.
[1] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13]
In our view the Crown case against the appellant on each of the three counts giving rise to this appeal was strong. Given that possession was effectively admitted, the critical issue was whether the Crown could establish the necessary intent. There is no criticism of the Judge’s directions to the jury which Mr Jefferson accepted were “impeccable”.
The jury had the benefit of hearing and seeing the appellant give evidence. Obviously, and not surprisingly, it rejected the appellant’s explanation for exercising control over the various items. Having reached that conclusion, the jury was required to set that evidence aside and go back to the Crown case to see whether it proved beyond reasonable doubt that the appellant had the necessary intent in relation to each charge.
We are satisfied that there was ample evidence in this regard and that it was unnecessary for the jury to embark upon speculation. In our view, the jury’s questions did not indicate that the jury was involved in speculation or any other unacceptable form of reasoning. To the contrary, they indicate to us that the jury approached the issue of intent with care.
Outcome
The time for appealing is extended. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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