P v Police HC Wellington CRI 2008-435-9

[2008] NZHC 1333

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-435-9

P

v

NEW ZEALAND POLICE

Hearing:         26 August 2008

Appearances: Mr Knowsley for the appellant

Mr Anderson for the respondent

Judgment:      27 August 2008         at 4pm

JUDGMENT OF MALLON J

Introduction

[1]      Ms P   pleaded  guilty to a charge under  s 12A(2)(b)  of  the  Misuse  of Drugs  Act  1975  (possession  of  a  precursor  substance  with  intent).    She  was sentenced to 100 hours community work.  She now seeks to appeal her conviction on the ground that there was a miscarriage of justice.   She says that this miscarriage arises because she did not understand the nature of the charge before she entered her guilty plea.  The appeal is out of time and so leave is sought to bring this appeal.

Background

[2]      On the evening of 4 December 2006 the police were asked to assist the owner of an untenanted rental property in Masterton who was concerned there were people

P V NEW ZEALAND POLICE HC WN CRI 2008-435-9 27 August 2008

present inside the house on the property.  Sitting around a table inside the house the police    found    Ms P  ,    together    with    a    Mr Poharama,    Mr Norman    and Mr McKenzie.  On the table were a number of items capable of being used in the manufacture of methamphetamine, some of which contained a residue of pseudoephedrine (an ingredient in methamphetamine).   The items on the table included two plastic “industrial” bottles containing acetone and an open bottle of methylated spirits.  There were also coffee filter papers, pestle and mortar, glass jugs and dishes and a number of empty “Contact NT” capsules.  The police carried out a search in the vicinity of the property and found, in the boot of Ms P  ’s car, a sawn-off shotgun which belonged to Mr Poharama.

[3]      Ms P   admitted from the outset that she had driven Mr Poharama in her car from Palmerston North to Masterton earlier in the day and that later she had driven  Mr Poharama  and  Mr Norman  in  her  car  to  The  Warehouse.     Police investigations established that the methylated spirits found on the table had been purchased  by  Mr Poharama  and  Mr Norman  from  The  Warehouse  that  day. Ms P   accepted that the acetone belonged to her, explaining that she was a nail technician and that she used the acetone in the course of her work.

[4]      Charges were laid against all four present at the address.   The indictable charge  initially  laid  against  Ms P    was  that,  together  with  Mr McKenzie, Mr Poharama and Mr Norman, she possessed precursor substances (Contact NT, acetone and methylated spirits) intending that they be used in the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act (s12A(2)(b) of the Misuse of Drugs Act).

[5]      Ms P   signed a request to be brought before the District Court to enter a guilty plea to an amended charge of possessing a precursor substance, namely acetone, intending that the substance be used in the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act (s 12A(2)(b) of the Misuse of Drugs Act). Ms P  ’s counsel at this time was Ms Johnson.

[6]      In   accordance   with   Ms P  ’s   request   her   guilty  plea   was   entered. Mr Norman and Mr McKenzie pleaded guilty to possession of utensils (s 13(1)(a) of

the   Misuse   of   Drugs   Act)   and   Mr Poharama   pleaded   guilty   to   producing pseudoephedrine (s 6(1)(b) of the Misuse of Drugs Act), unlawful possession of the shotgun and unlawful possession of ammunition (ss 50(1)(a) and 54(2) of the Arms Act 1983).

[7]      Having  entered  her  guilty  plea,  Ms P    made  an  application  to  be discharged without conviction on the basis that the consequences of conviction for her would be out of proportion to the gravity of her offending.  This application was supported  by  an  affidavit  dated  31 March  2007  to  which  I  will  return.    On

28 June 2007 the Judge dismissed the application and imposed a sentence of 100 hours community work.

[8]      The material before me does not identify precisely when, but at some point Ms P   came back before the Court on a charge of breaching her community work. An affidavit from her dated 23 August 2008 (filed in support of this appeal and the application  for  leave)  advises  that  she  met  the  duty  solicitor,  Mr Becker,  and explained to him the reason she was there and the background behind the original charge for which she had received the community work sentence.  She says that until she  spoke  to  Mr Becker  that  day she  did  not  realise  that  she  could  appeal  her conviction and that this is the reason for the delay in lodging the appeal that is now before me.  The basis for the appeal that is put forward is that she did not know that the acetone was going to be used for manufacturing drugs.

The legal principles

[9]      The relevant legal principles are not in dispute.   Counsel for the appellant accepts that it is relevant to consider the merits of the appeal in determining whether leave to appeal out of time should be granted.  He accepts that where a guilty plea has been entered and a sentence has been imposed, the guilty plea can be vacated only by way of an appeal against conviction on the grounds of miscarriage of justice. Of the “three broad situations” identified and discussed in Adams on Criminal Law at CA385.21 (and referred to in R v Le Page [2005] 2 NZLR 845 at [17]) in which a miscarriage of justice might arise, Ms P ’s appeal is on the basis that she did not appreciate the nature of the charge. Counsel for the appellant accepts that the burden

on an appellant in these circumstances is an onerous one.  Counsel for the respondent emphasises the exceptional circumstances required to establish a miscarriage of justice when a guilty plea has been entered but accepts that this can arise if an appellant did not appreciate the nature of the charge.

[10]     The parties are agreed that the first question is whether leave should be granted to Ms P   to appeal out of time.  If it is to be granted the hearing of the appeal would need to be adjourned because the Crown would wish to obtain an affidavit from Ms Johnson as to the advice she gave Ms P  .  This is because, in pleading guilty, Ms P   is taken to have accepted that the necessary elements of the offence are present:   see R v Shepherd CA 253/07 22 February 2008 at [10]. Ms P   needs to establish that, despite what her guilty plea indicates, she was genuinely mistaken about the nature of the charge.  Relevant to this is the advice she received from her counsel.

Evidence provided in support of the appeal

[11]     Ms P  ’s affidavit sworn on 31 May 2007 sets out how she says she came to be found sitting around the table at the Masterton property.  She says that at the time she was a self-employed nail technician operating a “beauty taxi” in Palmerston North  and  in  the  course  of  that  business  she  carried  acetone  in  her  car.    She explained that through advertising her business she began receiving text messages from Mr Poharama and met him on a couple of occasions as well.  She says that on

4 December 2006 she received a text message from Mr Poharama asking her to give him a ride to Masterton to visit family.   She felt under pressure to take him and eventually agreed to do so.

[12]     She  says  that  when  they  arrived  in  Masterton  from  Palmerston  North Mr Poharama directed her to pick up a friend of his and to drop them off at the address where they were later found by the police.  She declined an invitation to go into the house at that time “because I was worried about what was going to happen”. She later went back to the house to see if Mr Poharama was ready to return to Palmerston North but at this stage Mr Poharama got her to take him and another one of his friends to The Warehouse and Woolworths.

[13]     She says:

By this time, I knew something was not right but didn’t feel able to remove myself from the situation.  When I dropped him and his friend back at the Colombo  Road  house,   I  tried   not  to   go   back  into   the   house   but Philip Poharama told me I should go in with them.  He said he wouldn’t be long.   Because I was becoming frightened about what was going on (the people that were with Philip Poharama were quite scary) and because I didn’t feel able to say no, I went into the house.   When we got in there, Philip Poharama started telling the other people that I had Acetone in the back of my car.  They told me to go and get it.  I went back into the house and lit a cigarette.  About five minutes later the Police arrived.

I  carry  the  Acetone  in  the  back  of  my  car  as  part  of  my  business. Philip Poharama knew that it was there because he had seen it in the back of my car.

I did not know of the other people in the house.  While I knew that some form of drug activity was going on, other than taking my Acetone into the property, I took no further part.

[14]     As to why she pleaded guilty to the charge she says :

I was always prepared to plead guilty to the possession of the Acetone but because I did not know what else was going on in the house, and did not feel able to get away, I denied all of the charges until the Police accepted my plea.

[15]     Ms P  ’s affidavit sworn on 23 August 2008 elaborates on her reasons for pleading guilty.  She states:

… I explained to [Mr Becker] that I had pleaded guilty to that original charge because my lawyer in Masterton had advised me to do so because the acetone belonged to me.   I had the acetone for work and never had any intention to use it to manufacture drugs, my lawyer in Masterton knew that, but I was not advised that the circumstances surrounding my arrest and the subsequent charge had any relevance in Court.

I believed at the time that the possession of acetone by me, and not in work circumstances but in a building where there was an attempt at manufacturing drugs, was a crime of which I would be found guilty, despite me having no knowledge that my acetone was going to be used for that manufacture.

When I did realise that there was drug manufacturing going on, as I said in my [31 May 2007] affidavit at sentencing, I felt intimidated and too scared to run away.

It is also my belief that my co-accused in Masterton would have given evidence that I was coerced into being there with my acetone and that I did not know what was going to happen, and that my lawyer at the time had been told that by the co-accused.   I have no way of knowing whether my lawyer was told of this but this is what the co-accused told me.

[16]     There  is  no  affidavit  from  Ms P  ’s  lawyer  as  to  the  advice  she  gave Ms P   before Ms P   entered her guilty plea.  The submissions filed in support of this application state that:

The Appellant was represented by Ms Jane Johnson throughout the original charge.  Present Counsel has sought to obtain the full file from Ms Johnson, however, no Police summary has been made available; and Ms Johnson now resides in Australia.

[17]     Counsel advises that a waiver of privilege has not yet been sought from Ms P  .  Counsel also advises that Ms P  ’s mother was present throughout the discussions between Ms P   and her then counsel and that it may be that the mother will have relevant evidence as to the advice given to Ms P  .

My view

[18]     Section 12A(2)(b) requires both possession of a precursor substance and an intent that the substance “is to be used in, or for, the commission of an offence” against s 6(1)(b) (ie. producing or manufacturing a controlled drug).  The intention under  s 12A(2)(b)  can  be  that  the  acetone  will  be  used  by  someone  else  to manufacture the methamphetamine, a point noted in Moore v The Police TAU HC AP 11/01 23 August 2001 at [25].

[19]     Counsel for Ms P   submits that the evidence is not  clear  about  when Ms P   knew there was some form of drug activity going on – before or after she brought the Acetone into the house.  He submits that, if the latter, she may have had a defence to the charge and that she should have been advised of this by her lawyer. He submits that it is apparent from her 23 August 2008 affidavit that she was not advised of this.  Counsel submits that it is a fundamental requirement of counsel to advise a defendant of the nature of the charge to enable the defendant to make an informed decision as to whether to plead guilty to the charge.

[20]     In my view a fair reading of both affidavits is that she initially did not know what Mr Poharama and the others were up to, although she had concerns about it. But by the time she obtained the acetone from her car, she knew that there was drug activity going on and that acetone was needed for that and she felt unable to say no

to the request.  Nowhere in her affidavit does she say that it was only after returning with the acetone that she realised that drug activity was taking place or why that was so (ie. what was different about the circumstances before she went to get the acetone and after she had obtained it).

[21]     In these circumstances there is evidence that she both possessed the acetone and had the intent that it would be used by the others in the drug activity.  That her culpability was low – because she was a reluctant participant and she supplied only one item to her co-offenders which item she happened to have in her possession for legitimate reasons – was relevant on her application for a discharge without conviction, but not to whether the charge would be made out.   Ms P   has not made this appeal on the basis that the District Court Judge erred in dismissing her application for a discharge and in sentencing her to 100 hours community work.

[22]     As to her understanding of the nature of the charge, the affidavit evidence is unclear as to precisely what she was told by Ms Johnson.   She says that she told Ms Johnston that she did not intend to use the acetone to manufacture drugs, but she does not say whether Ms Johnson explained to her that her intention could be that someone  else  would  use  the  acetone  to  manufacture  the  methamphetamine. Evidence from Ms Johnson is not before the Court and there is not a full explanation of the efforts to contact Ms Johnson.  Instructions have not yet been obtained from Ms P   to provide a waiver of privilege.   There is no affidavit evidence from Ms P  ’s mother as to the advice Ms P   received.

[23]     What is before the Court is that the information to which she pleaded guilty sets out that a component of the charge is that she possessed the acetone “intending that the substance be used in the commission of an offence against s 6(1)(b) Misuse of Drugs Act 1975, namely producing or manufacturing any controlled drug”; that the request to be brought before the Court to enter a guilty plea which she signed states that she possessed the precursor substance “intending that the substance be used in the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act, namely producing or manufacturing any controlled drug”; and that in sentencing Ms P   the Judge referred to intent by saying “I am satisfied that you intended to get involved, and you did get involved”.

[24]     In my view Ms P   has not made out a sufficient evidential basis from which I could find that a miscarriage of justice may have occurred because she misunderstood the nature of the charge when she pleaded guilty.  I consider that this is not an appropriate case in which to exercise my discretion to allow Ms P   to bring her appeal against her conviction out of time.   The application for leave to appeal her conviction is dismissed.

Mallon J

Solicitors:

K Becker, Barrister, PO Box 207, Levin ([email protected])

M Anderson, Luke Cunningham Clere, PO Box 10357, Wellington (email: [email protected])