R v C HC Auckland CRI 2006-004-22722

[2008] NZHC 558

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-022722

THE QUEEN

v

C

Defendant

Hearing:         21-22 April 2008

Appearances: Mr Glubb for Crown

Mr Lance & Mr Wicks for accused

Judgment:      22 April 2008

REASONS FOR VERDICT OF WINKELMANN J

Crown Solicitor, Auckland

S Lance, Barrister, Auckland

R V C HC AK CRI 2006-004-022722  22 April 2008

[1]      Mr C  , you are charged with one count as follows: that on or about 11

February  2006  at  Auckland  together  with  Zhi  Tong  Zhan,  you  had  in  your possession a class C controlled drug pseudoephedrine for a purpose specified in paragraph (d) or (e) of s 61 of the Misuse of Drugs Act 1975, namely that you had pseudoephedrine in your possession for the purpose of supply.   The Crown says against you that you were either a principal offender, or that you were a party to offending by Mr Zhan in that you did acts to aid and abet him in his possession of the pseudoephedrine for the purposes of supply.

[2]      The following are the facts that are not in issue in this prosecution.  At about

3.49 am on the morning of 11 February 2006, a  group of police officers  were undertaking licensing checks at a number of inner city bars.   Two were walking down Victoria Street West, travelling east.   Two others were in a police vehicle. They had performed a licensing check at the Dispensary Bar and were moving on to the Palace Bar.   The two police officers who were on foot, Sergeant O’Neill and Constable Fischer, noticed an Asian male standing in Victoria Street West.  That was Mr Zhan.  There is some difference in the evidence of these two as to Mr Zhan’s location when initially seen by them.  However, there is a consistent recount by both Constable Fischer and Sergeant O’Neill that Mr Zhan moved quickly toward a white Legnum Mitsubishi which was double parked in Federal Street.  Whilst still outside the car Mr Zhan called out to the driver “go, go”.  The police approached the car. The passenger and the driver were spoken to.  You were the driver of that car.  The police then invoked their powers of search under s 18 of the Misuse of Drugs Act. On a search of the vehicle they found a brown paper bag.  Inside that brown paper bag wrapped up in two sheets of newspaper from an Asian newspaper, they found a ziplock bag containing approximately 440 grams of pseudoephedrine.   The pseudoephedrine appears to have been extracted from ContacNT capsules which are freely available in China, but not able to be legally exported from China.  It was in a pink and yellow granulated form.  You were searched by Constable Arapai, one of the officers from the police vehicle which had by that time arrived on the scene. Nothing of interest was found on you.

[3]      Mr Zhan has subsequently pleaded guilty to a count of possession of the class

C controlled drug pseudoephedrine for the purposes of supply.

[4]      In order to prove the charge of possession for supply against you the Crown must prove beyond reasonable doubt that:

(a)       You had a substance in your possession.

(b)That  substance  was  or  contained  the  class  C  controlled  drug pseudoephedrine.

(c)       That you knew that it was or contained a controlled drug.

(d)That you intended that the substance would be used in or the purpose of supplying it to another.

[5]      In this case there is evidence in the form of an ESR certificate that the substance was pseudoephedrine and that it weighed approximately 440 grams. Because the quantity of pseudoephedrine exceeded 56 grams, there is a statutory presumption that whoever had possession of it had it for the purposes of supply. That presumption is determinative of the issue unless I am satisfied on the balance of probabilities that the person in possession had the substance for a purpose other than supply.

[6]      There is no issue in this trial that the substance found in the brown paper bag was the class C controlled drug pseudoephedrine.  Nor is there really an issue as to whether the substance was held for the purpose of supply.  In this case, what is said for you is that the Crown has failed to prove that you had the substance in your possession, and that really is the sole issue.

[7]      As a matter of law, for an accused person to be in possession of something the following must be proved:

(1)       That the accused had actual or potential control of the item.

(2)That the accused knew that he had the ability to control the use of the item.

(3)       That the accused had the intention to exercise control over the item.

[8]      The Crown also says in the alternative that you aided or abetted Mr Zhan in Mr Zhan’s possession of the pseudoephedrine for the purpose of supply by agreeing to transport him whilst he was in possession of the pseudoephedrine.  In our law a person can become a party if he does an act for the purpose of aiding someone to commit a crime.  For you to be found liable on this basis you not only have to have helped or assisted Mr Zhan with what he was doing, but the Crown must also show that you knew the essential facts of what was going to happen and intended that what you did would assist or encourage the committing of the crime.  So really, on either version of the Crown case it must prove that  you knew of the presence of the pseudoephedrine, either in the car or in Mr Zhan’s possession.

[9]      Your  counsel,  Mr  Lance  says  the  Crown  has  failed  to  prove  beyond reasonable doubt that you knew of the presence of the pseudoephedrine in the car and therefore you cannot be guilty either as a principal offender, or as a party to offending by any other person.

[10]     The Crown case is that it can be inferred that you knew of and had possession of the pseudoephedrine from the following facts:

(i)       The circumstances preceding the search of the car.   Your car was pulled up in an area known to be associated with drug dealing, and the Crown argues that it can be inferred from Mr Zhan’s conduct that there was something in the car that he was anxious be moved out of the area, and that is why he rushed to the vehicle and told you to “go, go”.   Those circumstances are said to be supportive of guilty knowledge.

(ii)The Crown says the pseudoephedrine was found in the car that you were driving.

(iii)It relies on the evidence of two police officers, Constable Fischer and Sergeant O’Neill that Mr Zhan was not carrying a parcel and that he could not have concealed a parcel of that size on his person as he approached the car.

(iv)The pseudoephedrine was in the well of the passenger’s seat, a place where a driver of the vehicle would place a package.

(v)Mr Glubb for the Crown submits that pseudoephedrine is a valuable substance and on a common sense level it is unlikely that someone would simply leave that substance in the car if lending the car to you.

[11]     Your counsel, Mr Lance says that this evidence does not support an inference that you knew of the presence of the pseudoephedrine in the car.  He relies upon the evidence that the car was the car of another person.   Particulars of the car’s registration were produced into evidence and establish that the owner of the motor vehicle at the relevant time was Mr Hsu.

[12]     Mr Lance also points to the account that you gave immediately upon being asked in relation to the paper bag that you did not know anything about it.  Sergeant O’Neill’s evidence was that you denied knowing anything about the contents of the bag and that you said:

That is not my car and William just asked me to pick him up.

[13]     Your counsel also relies upon the evidence of the police officers that there was a lot of rubbish in the car, and on the evidence of Sergeant O’Neill that the bag was not plainly visible from the driver’s side.  Sergeant O’Neill said:

You would have to physically have a look across to see it.

[14]     Mr  Lance  submits  that  the  evidence  supports  an  inference  that  it  was Mr Zhan who had possession of the package as he approached the car.  He notes that Mr Zhan has pleaded guilty to a count of possession for the purposes of supply and that the package was found in the middle of the footwell where one would have

thought it would be placed by a passenger as he got into the car, namely between his feet.

[15]     Although accepting that the police officers Fischer and O’Neill said they did not see the package in Mr Zhan’s possession as he approached the vehicle, Mr Lance puts emphasis upon the fact that Constable Fischer and Sergeant O’Neill gave different accounts of what they observed as they walked down Victoria Street West. Sergeant O’Neill said that he saw Mr Zhan cross to the vehicle from Sky City, whereas Constable Fischer said that Mr Zhan was standing outside the Palace Bar (across the road from Sky City), and that he moved just across Federal Street to the vehicle.  Both police officers said that the lighting was adequate but not excellent. Mr Lance also relies upon the fact that it is apparent from a view of the paper bag which was produced into evidence that it had previously been folded over into a much smaller package than appears in the police exhibit photographs.   Mr Lance submits that so folded it was of a size that could easily have been concealed by Mr Zhan  about  his  body,  or  carried  by  Mr  Zhan.    That  could  have  escaped observation by the police officers.  Mr Lance submits that the eye witness accounts have limitations.  The Crown has not thereby excluded the possibility that Mr Zhan had the paper bag on him as he moved to the vehicle.

[16]     Finally, Mr Lance contrasts your conduct to that of Mr Zhan once the police approached the vehicle.   He characterises your conduct as co-operative.   You immediately gave them your accurate contact details.  Further, when Mr Zhan ran to the vehicle and said “go, go” you did not try and drive off and nor did you do so when you saw the police approaching the vehicle.  Mr Zhan in contrast was evasive in his dealings with the police; not providing his correct details.

[17]     Having weighed the evidence carefully I consider that the evidence at least equally supports the inference that you did not know of the presence of the pseudoephedrine in the car.   The pseudoephedrine was concealed inside a plain, brown paper bag.  It was positioned in the footwell which Sergeant O’Neill conceded was not in plain view.  There was a large quantity of rubbish in the vehicle which would have further obscured the view of that parcel.  There is also nothing to link that parcel to you, apart from its presence in the motor vehicle.   But that motor

vehicle was registered in the name of another and your account when the police stopped you was that you did not know the parcel was there.   I do not attach any weight to the fact that the car pulled up in a drug dealing area, or that Mr Zhan seemed agitated by the presence of the police because those two matters are more relevant to assessing Mr Zhan’s conduct than yours.

[18]     Moreover I cannot exclude the possibility that Mr Zhan had the package in his possession before he got into the car.   I accept your counsel’s submission that there is some inconsistency in the recounts of both Constable Fischer and Sergeant O’Neill as to what they saw.  Given the distances across which they were observing Mr Zhan and the limitations in the lighting, I cannot exclude the possibility that Mr Zhan did have possession of the bag as he crossed to the vehicle.

[19]     The  Crown  must  prove  its  case  to  the  very  high  standard  of  beyond reasonable doubt.  Although I may suspect that you knew of the presence of the bag and of the controlled substance in that bag, that is not enough.  The Crown has failed to prove that you had possession of the substance.   For the same reason I am not satisfied that you are guilty as a party to the offending.  If the Crown cannot establish that you knew of the presence of the pseudoephedrine then it cannot succeed on the basis of either principal or party liability.   I therefore find you not guilty of the charge.  You are discharged without conviction on the one count in the indictment.

Winkelmann J