Marlow v The Queen - [2015] NZCA 546

IN THE COURT OF APPEAL OF NEW ZEALAND

CA335/2015
[2015] NZCA 546

BETWEEN	SAMUEL GRANICH MARLOW Appellant
AND	THE QUEEN Respondent

Hearing:	14 October 2015
Court:	Miller, Simon France and Asher JJ
Counsel:	I M Brookie for Appellant K S Grau for Respondent
Judgment:	17 November 2015 at 10.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

The appellant Samuel Marlow was convicted following a jury trial in the High Court at Auckland on one charge of attempting to manufacture methamphetamine and three charges of possession of items (precursors, equipment and material) used in the manufacture of methamphetamine.
The charges against Mr Marlow followed the termination of a major drug and corruption investigation called Operation Pax. At 6 am on 17 May 2013, the police executed a search warrant on a property occupied by a Richard Rei in Whenuapai. At the pedestrian gate to the house they located Mr Rei. They then went to the back of the garage that was adjacent to the house, where there was a wooden shed or outhouse. One constable, Constable Chadwicke Cox, entered the shed. There was a light on and there was a curtain across the doorway.
On entering the shed Constable Cox found Mr Marlow standing looking surprised. He was fully clothed. Constable Cox directed him to get down on the ground, which he did. The Constable then went outside the shed and got Mr Marlow to crawl out. The police found that inside the shed there was an operational methamphetamine manufacturing laboratory. The methamphetamine was in the latter stages of manufacture.
Mr Marlow made no statement to the police and did not give evidence. The police case was circumstantial. There was an initial attempt to have Mr Marlow discharged under s 347 of the Crimes Act 1961. That application was dismissed by Venning J on 8 May 2014.[1] At the trial the jury heard that Mr Rei had pleaded guilty as the “principal cook” for the attempted manufacture.
[1]R v Marlow [2014] NZHC 957.
The sole ground of the appeal is that the verdict was unreasonable and could not be supported having regard to the evidence.
Before us Mr Brookie for Mr Marlow accepted that the presence of the appellant at the scene was suspicious. However, it was submitted that the Crown evidence failed to show prior knowledge or active assistance or encouragement. Mr Marlow’s presence might be indicative of him assisting in the manufacture of methamphetamine, but did not prove the case beyond reasonable doubt. There was a reasonable possibility that Mr Marlow was in the wrong place at the wrong time. Mr Brookie relied on three cases, R v Wheatley, R v Salter, and Watt v R where there were s 347 discharges on the basis that the mere presence of the defendant was insufficient to establish guilt.[2]

Decision

[2]R v Wheatley HC Hamilton CRI-2006-019-8509, 6 September 2007; R v Salter HC Christchurch…

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 Marlow v The Queen

Details

AGLC: Marlow v The Queen [2015] NZCA 546
Case: [2015] NZCA 546
Decision Date: 17 November 2015 at 10.00 am

CaseChat Overview and Summary

The appeal against Samuel Marlow's conviction for attempting to manufacture methamphetamine and possessing items used in the manufacture of methamphetamine was dismissed by the Court of Appeal of New Zealand. The appeal followed Marlow's conviction by a jury in the High Court at Auckland, arising from a search of a property in Whenuapai, which was part of a major drug and corruption investigation called Operation Pax. At the time of his arrest, Marlow was found in a shed on the property, where an operational methamphetamine manufacturing laboratory was located. The shed was entirely devoted to the manufacture of methamphetamine, and the methamphetamine was in the latter stages of preparation. The jury heard that Richard Rei, who occupied the property, had pleaded guilty as the "principal cook" for the attempted manufacture.

The court had to determine whether the evidence was sufficient to support the jury's verdict that Marlow was guilty beyond reasonable doubt. The appeal's sole ground was that the verdict was unreasonable, given the evidence presented. The Court of Appeal concluded that the circumstantial evidence was strong and that the jury could reasonably have been satisfied beyond reasonable doubt that Marlow was guilty. The evidence included Marlow's presence in the shed, the shed's function, the operational laboratory, the time of day, the shed's location, the presence of pseudoephedrine on Marlow's clothing, and text exchanges between Marlow and Rei. The Court of Appeal found that the alternative explanations for Marlow's presence in the shed were not credible and that the circumstantial evidence was sufficient to support the jury's verdict.

The Court of Appeal found that the circumstantial evidence was strong and that the jury could reasonably have been satisfied beyond reasonable doubt that Marlow was guilty. The Court of Appeal concluded that the evidence was sufficient to support the jury's verdict, and the appeal was dismissed. The Court of Appeal found that the circumstantial evidence was strong and that the jury could reasonably have been satisfied beyond reasonable doubt that Marlow was guilty. The Court of Appeal concluded that the evidence was sufficient to support the jury's verdict, and the appeal was dismissed.

The Court of Appeal dismissed the appeal and upheld Marlow's conviction. The Court of Appeal found that the circumstantial evidence was strong and that the jury could reasonably have been satisfied beyond reasonable doubt that Marlow was guilty. The Court of Appeal concluded that the evidence was sufficient to support the jury's verdict, and the appeal was dismissed.

Orders