R v Beard HC Auckland CRI-2005-004-014461

[2007] NZHC 1766

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-004-014461

THE QUEEN

v

WAYNE JEFFREY BEARD

Hearing:         29 May 2007

Appearances: Philip Hamlin for Crown

Raoul Neave for Accused

Judgment:      29 May 2007

JUDGMENT OF HARRISON J ON S 347 APPLICATION

SOLICITORS

Meredith Connell (Auckland) for Crown

Raoul Neave (Christchurch) for Accused

R V BEARD HC AK CRI-2005-004-014461  29 May 2007

[1]      Mr Wayne Beard is in the second day of trial on one charge of possessing MDMA, commonly known as Ecstasy, on or about 6 July 2005 for the purpose of supply.

[2]      The essence of the Crown case is this.  In June 2005 Mr Beard, who lives in Christchurch, was introduced to Mr John Waterworth, who then lived in Auckland. They had a mutual acquaintance.   Mr Waterworth was in business.   Some of his commercial activities were legal; others were not.  He was operating on a reasonably large scale as a supplier of controlled drugs including Ecstasy.

[3]      The police obtained an interception warrant from this Court.  It entitled them to intercept communications between Mr Waterworth and others both in his home and by means of telephone and text messages.  They intercepted telephone calls and text messages between Mr Waterworth and Mr Beard.   The nature of those coded communications suggested that Mr Waterworth was supplying drugs to Mr Beard. Of particular interest was evidence that he was selling MDMA or Ecstasy at $42 per tablet.  Mr Waterworth was subsequently arrested on a number of serious charges of supplying controlled drugs.   He pleaded guilty.   He was sentenced to a term of imprisonment.  Based on his evidence the Crown laid this charge against Mr Beard.

[4]      In opening yesterday Mr Philip Hamlin for the Crown summarised its case in this way.  He said that on or about 6 July 2005 Mr Waterworth supplied Mr Beard at the City Life Apartments in Auckland with 200 Ecstasy tablets purchased at $42 each.  The total value of the sale was said to be about $8,000.  It was the Crown’s case  that  Mr Beard  flew  from  Christchurch  to  Auckland  specifically  for  the transaction.

[5]      However, when he gave his evidence yesterday and today, Mr Waterworth did not come up to brief.  While he was sure that he supplied Mr Beard with Ecstasy, he had difficulty remembering the exact number.  Originally in answer to questions from Mr Hamlin he said he thought that it might have been 200 tablets.  Later, while still  under  examination-in-chief,  Mr Waterworth  modified  this  figure  to  50.    In answer to questions from Mr Neave he accepted that the numbers were, in his words,

‘at very low levels’.  In particular he said Mr Beard was always short of cash.  He referred to an unsuccessful application for credit.

[6]      Mr Waterworth also acknowledged that he met Mr Beard at his apartment on

15 July 2005.  This was the day after he was arrested.  Mr Beard is not charged with any  offending  relating  to  that  meeting.     In  the  course  of  their  discussion Mr Waterworth told Mr Beard that he heard a knock on the door and in response threw a bag containing 400 tablets of Ecstasy into his dishwasher.  In evidence he said he had earmarked up to 50 for Mr Beard, providing he had the cash.

[7]      The significance of Mr Waterworth’s evidence is this.  The Misuse of Drugs Act provides that a person is presumed to have a controlled or prohibited drug in his or her possession for supply if he or she has 100 tablets or more.  That, in effect, is the statutory presumption for dealing.   There is no presumption at a lower figure. Accordingly, the Crown must prove that somebody in possession of less than 100 tablets has them for one of the designated prohibited purposes.

[8]      In the jury’s absence at the end of the Crown case (they are present in Court to hear this decision), Mr Neave applied for an order discharging Mr Beard from trial on the charge of possessing MDMA for supply.  He acknowledged, of course, that Mr Waterworth’s evidence, if accepted by the jury, would be sufficient to prove a charge of possession on its own.  However, he submits there is no evidence that such possession was for a prohibited purpose.

[9]      I have considered Mr Neave’s submissions over the lunch hour.  There is no evidence that Mr Beard ever supplied a third party or dealt with drugs.   Thus the Crown will have to ask the jury to draw an inference or conclusion to this effect.  As Mr Neave properly emphasises, inferences must be drawn from proven or reliable facts.  They cannot be the result of guesswork or speculation.  I am satisfied that no jury  could  properly  infer  that  Mr Beard  purchased  50  tablets  of  MDMA  from Mr Waterworth on 6 July 2005 for the purpose of dealing, if that was the only evidence for the Crown.  In this respect, Mr Baber, the police officer, acknowledged to  Mr Neave  that  when  he  searched  Mr Beard’s  apartment  in  Christchurch  in

October 2005 he found no paraphernalia, drugs, tick lists or anything which might suggest Mr Beard was in the business of selling to third parties.

[10]     However, Mr Hamlin submits that the evidence of the meeting on 15 July adds a new dimension.  He accepts that Mr Waterworth’s evidence is to the effect that only up to, not necessarily including, 50 of those 400 tablets placed in the appliance were to be allocated to Mr Beard.  He says that this intended transaction, which of course did not take place due to the police intervention, was only six days after the sale alleged by Mr Waterworth.  He says that a jury could safely infer that Mr Beard could not have used or consumed all 50 tablets which he obtained six days earlier no matter how heavy was his own level of consumption.

[11]     I agree with Mr Neave that this event does not save the Crown case.   The Crown has the burden of proving a charge.  There is no evidence before the jury of what quantities of MDMA a user may safely consume in one day, even if he or she was a heavy consumer, or six days.  Mr Beard is under no duty to give evidence or to explain his position.  On the state of the Crown case the jury could only speculate based on what its members may have read in newspapers or gleaned from general knowledge about levels of individual consumption.   Moreover, as Mr Neave says, the Crown would be asking the jury to draw a double inference – the first inference being that Mr Beard had run out of the drugs over that six day period; the second being that he could not have used them for his own purposes in that time but required them for supply to third parties.

[12]     Thus I am satisfied that there is insufficient evidence to place Mr Beard on continued trial on the charge of possession of Ecstasy for the purposes of supply. Accordingly, I direct its amendment to delete the last words ‘for a purpose specified in paragraph (c) of subsection (1) of section 6 of the Misuse of Drugs Act 1975’.  He

is now on trial on one charge of possession of Ecstasy.

Rhys Harrison J