R v C HC Hamilton To21315

[2002] NZHC 1108

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY TO21315

ORDER FORBIDDING PUBLICATION [SEE: PARA [21] OF JUDGMENT]

THE QUEEN

v

C

Hearing: 2 October 2002

Counsel:
Mr P G Mabey QC for Accused
Mr P P Crayton for Crown

Judgment: 4 October 2002

JUDGMENT OF HEATH J

Solicitors:
Boot and Roose, Solicitors, Hamilton (Attention Mr Roose) for Accused
Mr P P Crayton, Almao Kellaway, PO Box 19173, Hamilton, Fax: [phone]

Counsel:
Mr P G Mabey QC, PO Box 13199, Tauranga, Fax: [phone]

Introduction

[1] Mr C was committed for trial in this Court following the taking of depositions on 1 July 2002 in the District Court at Hamilton before a Community Magistrate. The indictment presented by the Crown Solicitor alleges that Mr C supplied a Class B controlled drug, methamphetamine, to an undercover police officer known as X on 18 and 23 February 2002 respectively. The charges involving Mr C are Counts 12 and 13 of the indictment.

[2] Mr C seeks an order under Section 347 of the Crimes Act 1961. Mr Mabey QC submits that there is insufficient evidence for Mr C to be put on trial on the two counts proffered against him. Mr Crayton, for the Crown, opposes the application.

Section 347 Crimes Act 1961: Legal Principles

[3] The principles to be applied by this Court in determining an application under s 347 of the Act were restated recently by the Court of Appeal in R v Flyger [2001] 2 NZLR 721. Where an application is brought under s 347 of the Act based on insufficiency of evidence (as is the case here) the Court of Appeal, per Anderson J, adopted Tompkins J’s formulation of the test in R v Adams (High Court Auckland T240/91, 8 October 1992) where His Honour had said:

“Where, as here, the Crown case is dependent, in whole or in part, on inferences, the credible evidence must establish facts capable of supporting the inference. The Court should not decide on such an application or submission whether the relevant inference should be drawn.” [Tompkins J’s emphasis]

See R v Flyger at 726-727, para [18].

[4] Mr Mabey QC and Mr Crayton put slightly different emphases on various passages from the judgment of the Court of Appeal in Flyger. While, at various stages of the judgment the Court of Appeal discussed the sufficiency of evidence in the context of the overall safety of a likely verdict (eg at para [15] at 725-726) and adopted the principles applicable when a submission is made in a summary jurisdiction of “no case to answer” formulated in R v Galbraith [1981] 2 ALL ER 1060 (CA) at 1062, I am satisfied that the appropriate test to apply is whether a jury, properly directed, could convict Mr C on the two counts of supplying methamphetamine which has been brought against him. The distinction is a subtle one, but the Court of Appeal has made it clear that that test is preferable to the test formulated by Wilson J in R v Myers [1963] NZLR 321. In that case Wilson J expressed the opinion that this Court could discharge an accused under Section 347(1) of the Crimes Act if satisfied that it was “unlikely that any jury, properly directed, would convict” or “that it would be wrong for a jury to convict”. The Court of Appeal, in Flyger, overruled R v Myers.

The Facts

[5] Between 16 July 2001 and 21 March 2002 a Constable, known for the purpose of this proceeding as X, was attached to Police National Headquarters in Wellington and deployed as an undercover agent in the Waikato. Mr C and his co-accused have been charged with offences under the Misuse of Drugs Act 1975 as a result of Detective Constable X’s undercover activities.

[6] Mr C is known as “S”. He is the de facto partner of Ms M, a co-accused. Ms M’s father, R M, is another of the co-accused.

[7] The two charges brought against Mr C each allege that he supplied a Class B controlled drug, methamphetamine, to Detective Constable X. Count 12 alleges a supply of methamphetamine on 18 February 2002. Count 13 alleges a supply of methamphetamine on 23 February 2002.

[8] In relation to Count 12, both Mr C and Mr R M are alleged to have supplied the drug. In relation to Count 13, the people who are alleged to have supplied the drug are Mr C, Ms M and Mr R M. Mr Crayton puts the case to me on the basis that Mr C should be regarded as a party to the offending; it is alleged that he aided and abetted the commission of the offence.

[9] The evidence of Detective Constable X, in relation to Count 12, is to the following effect:

[a] At 1.30 pm on 17 February 2002 he received a telephone call from a man by the name of Mr H. (I note, at this point, that Mr H has already been dealt with by the courts for offending but will not be called as a Crown witness at the trial of Mr C and his co-accused). Detective Constable X says that Mr H told him that he had arranged a gram of pure methamphetamine through Mr R M.

[b] Detective Constable X met Mr H at an address in U Street, Hamilton, later that afternoon. Once they met they went, together, to an address at W Street, Hamilton. Mr C, whom Detective Constable X had previously met at that address, met Mr H and Detective Constable X at that address.

[c] A conversation proceeded which, according to Detective Constable X’s evidence, was initiated by Mr C who asked the question: “Are you keen?” A discussion followed following which Mr C provided a cell phone number to Detective Constable X. Mr C made a call on his cell phone and as a result of that call told Detective Constable X that the person we were expecting would not be back until after 5 pm.

[d] Detective Constable X and Mr H left the premises and returned later that night but Mr C was not home.

[e] On 18 February 2002 Mr H telephoned Detective Constable X. As a result of that telephone call the Detective Constable went to W Street with the intention of purchasing a gram of pure methamphetamine from Mr R M. He arrived at the address at approximately 1.25 pm.

[f] Detective Constable X was greeted by Mr H and Mr C. Three other people were present when they arrived at the address.

[g] Later in the afternoon, Mr R M arrived at W Street, Hamilton. Detective Constable X says that Mr C followed Mr R M into the house. He waited outside with Mr H for a short time before Mr H was called inside. Mr H subsequently called Detective Constable X into the house.

[h] The Detective Constable and Mr H walked through to the kitchen where Mr R M and Mr C were standing. Mr C said to the Detective Constable: “There it is X, on the bench bro.” He pointed to a snap lock bag on the kitchen bench. The Detective Constable picked up the snap lock bag and could see that it contained a sugar-like substance consistent with being a gram of pure methamphetamine.

[i] After the transaction was completed, the Detective Constable asked Mr R M: “If this one goes okay, how do I get a hold of you, through S?” to which Mr R M replied: “Yeah mate, just give him a call.” “S” is, of course, Mr C’s nickname. There is no evidence that this statement was made in the presence of Mr C.

[10] The evidence in relation to Count 13 is contained in Detective Constable X’s evidence at the deposition hearing for Ms M. The effect of the Detective Constable’s evidence can be summarised as follows:

[a] At 4.30 pm on 22 February 2002, Detective Constable X went to W Street, Hamilton. He was met by Mr C and Ms M. Detective Constable X had a conversation with Mr C in the presence, and within the hearing, of Ms M. The essence of the conversation was an inquiry by the Detective Constable as to the whereabouts of Mr R M followed by an inquiry as to whether another gram of methamphetamine was available for purchase. Mr C indicated that another gram may be available but he did not know where Mr R M was. He suggested that the Detective Constable call back in an hour or so.

[b] Subsequently, at appropriately 7.10 pm that day, Detective Constable X telephoned the cell phone number he had been given for Mr C and spoke to Ms M. In the course of that conversation, Ms M indicated that Mr R M was in Auckland. She also said that she thought “someone’s baking some”.

[c] Ms M telephoned Detective Constable X on the morning of 23 February 2002, in the course of which the Detective Constable was alerted to the fact that Mr R M was back in town.

[d] Detective Constable X went to W Street, Hamilton, and located Mr R M sitting in the driver’s seat of a vehicle parked in the driveway. After a conversation, the Detective Constable arranged to meet Mr R M inside the house to weigh the methamphetamine using electronic scales. A transaction involving the supply of methamphetamine to Detective Constable X followed.

Other Legal Issues

[11] There are three legal issues which I need to address briefly.

[12] First, the Crown relies upon statements of co-parties as well as direct evidence from Mr C to assist it to establish the charges beyond reasonable doubt. In R v Tauhore (1996) 14 CRNZ 248 at 250 expressed the rationale for this rule in the following terms:

In Tripodi v R (1961) 104 CLR 1; [1961] ALR 780, this issue came before the High Court of Australia. In its judgment, the court said (at page 7; 782):

“It must be remembered that the basal reason for admitting the evidence of the actual words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.

We can find no valid reason for distinguishing the case of two or more accused acting together in furtherance of a common design, and being charged with the particular offence, from the case where the charge is one of conspiracy. It is the fact of common design which is critical. The statements made by one in furtherance of that design are thereby admissible against the other or others. The rule cannot logically be confined to cases where the offence charged is one of conspiracy.”

[13] The second issue concerns the ability of a jury to draw inferences from proved facts. It is trite law that where two inferences are open it is necessary for the accused to be given the benefit of the doubt: see R v Puttick (1985) 1 CRNZ 644 (CA) at 647. Thorp J, delivering the judgment of the Court of Appeal in that case, said:

“It must be . . . unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step.”

[14] The third issue concerns the meaning of the term “aiding” in s 66(1)(b) of the Crimes Act 1961. In Larkins v Police [1987] 2 NZLR 282 (CA), the Court of Appeal held that to sustain a conviction for aiding, there must be proof of actual assistance. The court held that the reference to “purpose” in the phrase “for the purpose of aiding” in s 66(1)(b) of the Act, was descriptive of the state of mind of the aider and “superimpose[es]” a requirement in that respect upon the need for proof that the accused did an act which had the effect of aiding.

Conclusions

[15] Could a jury, properly directed, convict Mr C of supplying methamphetamine on either or both of the occasions outlined?

[16] I agree with Mr Crayton’s submission that the evidence of Detective Constable X must be set against the background of the various transactions in which he was involved. But the scope of the background which the jury may take into account is, at the present, unclear. The role of Mr C, therefore, might not be susceptible to close analysis until witnesses have given oral evidence.

[17] Mr Crayton submitted that the evidence was capable of proving that Mr C acted as a conduit between the Detective Constable (as proposed purchaser) and Mr R M (as vendor) and that he acted as a conduit in an endeavour to assist Mr R M in the sale of the drug.

[18] Having reviewed the evidence I am satisfied that the interpretation of the evidence urged upon me by Mr Crayton is a view which a jury, properly directed, could form about the evidence. If the jury took that view of the evidence it could, properly directed, convict Mr C on both counts.

[19] What has become clear, in the course of argument, is that the role played by Mr C may well depend upon the way in which evidence is given and the answers given in cross-examination. It is quite possible that the way in which evidence is given could put a different slant on the evidence than that which currently exists when one reads the evidence in stark form on paper. It is always open for a fresh application to be made under s 347 at the conclusion of the Crown case. But for present purposes I am satisfied that the application should be dismissed.

[20] The application under s 347 of the Act is dismissed.

[21] I make an order forbidding publication of anything contained in this judgment pending final determination of the trial which is scheduled to commence in the High Court at Hamilton on 21 October 2002. Publication of this decision in a law report or law digest is permitted in the meantime provided the participants are identified only by letters of the alphabet.

[22] I thank counsel for their assistance.