R v E HC Wellington CRI 2006-032-3536

[2007] NZHC 1972

This case has been anonymized

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-032-3536

THE QUEEN

v

E

Hearing:         1 August 2007

Appearances: T Epati for the Crown

L Sziranyi and C Stanley for the Accused

Judgment:      6 August 2007

JUDGMENT OF SIMON FRANCE J (Pre-trial admissibility and s347 Rulings)

[1]      On 21 September 2006 the police executed a search warrant at an address in Stokes Valley.     The search was executed around 8.00am.   Ms E   was present.  It is common ground that it is not her residence, but the prosecution case is that she had stayed overnight and was in some form of relationship with the male tenant.

[2]      Ms E   was personally searched.   Three capsules were located in her underwear.  The capsules in turn contained 20 point bags with methamphetamine in

R V E HC WN CRI 2006-032-3536  6 August 2007

them.   The quantity is 3.6 grams so the presumption of possession for supply is not engaged.

[3]      Located in the flat were a series of items that are capable of being argued to be consistent with drug dealing.  This ruling proceeds on the intimated defence that it is accepted that Ms E   was in possession of methamphetamine, but it was for her own use.  If other items in the flat are consistent with drug dealing, which is not accepted, then it is submitted that it was not her flat and she was not a drug dealer.  The nature of her possession of drugs for (i.e. - her own use) should not be tainted by what was in some else’s flat.

Issue One – a stay of proceedings application under s347

[4]      ESR analysed the drug in January.   After analysis a drug is kept for three months to enable second or further analysis.  In the present case neither the Crown nor defence realised the analysis had been done, and more than three months had elapsed before it became known.  In the interim the drug had been destroyed.

[5]      I am advised the defendant’s position is that the purity of the drug was poor. It will be argued that the low purity is consistent with her claim to personal use. Ms Stanley, who presented this aspect of the argument, submitted the defence were prejudiced by not being able to confirm the purity.  It is common ground that ESR did not measure the purity and do not do so unless asked.

[6]      The application cannot succeed.  If Ms E   testifies to the effect that it was low purity, there will be no contrary evidence from the prosecution.   The submission can still be made.  The purity of the drug is not part of the Crown case and it equally accepts that it cannot assert specific values to this drug given the purity challenge and the lack of specific evidence.

[7]      It is of course over to the defence whether it wishes to advance the argument, but it is not one that could lead to a stay even if the defence had been prejudiced by the destruction of the drug.  If the drug was for her own use, then the inference must be that Ms E   bought it from someone at that level of purity.  If she bought

it, someone sold it.  In other words the low purity of a drug is not on its face much of an argument that the drug could not be possessed by someone for the purposes of sale.

[8]      The s347 application is dismissed.

Issue Two – Admissibility of expert evidence

[9]      Following  realisation  that  the  presumption  would  not  apply,  the  Crown submitted a brief of evidence from Detective Chenery who is a member of the Organised Crime Unit and familiar with drug offending.

[10]     The first eight pages of the brief are a familiar description of how dealing in methamphetamine occurs.  It is not opposed, although I note that the section on the effects of the drug would seem prejudicial and of no probative value in this case.  I did not hear from the Crown on that aspect, so provisionally exclude that section entitled “Effects of Methamphetamine”.  It does not meet the substantial helpfulness test in s25 of the Evidence Act 2006.  If the Crown wish to include it, they can apply to the trial Judge.

[11]     Objection was taken to the whole of the balance of the brief where Detective Chenery relates his general expert evidence to the case.  The structure of the brief is that the officer identifies an item found in the house, and relates it to his earlier general commentary.  Usually it is done by the expression:

“In my experience the [    ] is an indicator that the person is dealing in controlled drugs.”

[12]     Although the ultimate issue rule is not a bar to admissibility of opinion evidence, (see s25(2)(a) of the Act) in my view this manner of describing matters is unhelpful.  The extent of the officer’s evidence should be to confirm that the item found is consistent with the equivalent section of his general testimony – e.g. “the scales in photograph 21 are of the type generally used to weigh out drugs as noted earlier in my evidence.”  Such an approach avoids giving the expert’s imprimatur to the trial issue of whether the accused is a drug dealer.

[13]     Ms Epati accepted the brief should be redrafted along those lines, so it is not necessary to comment on the individual instances.

[14]     Other aspects of Detective Chenery’s evidence are to be deleted by consent. I record these as being:

Page 10:         last three paragraphs Page 11:         first three paragraphs Page 12:         last three paragraphs

[15]     I note finally on Detective Chenery’s brief that the penultimate paragraph of page 11 is to be relocated to the general evidence section (pages 1 – 8 of brief).

Issue Three – Admissibility of individual items

[16]     The Crown theory is that Ms E   was selling drugs as an associate with, or on behalf of, a man.  It draws this inference from written material found in bags in the flat that it says are linked to her.  A notebook found in a satchel will be argued to contain a set of instructions governing her drug dealing.  It sets out what she should do with customers, who to deal with and who not to, and requirements for keeping her associated dealer informed.

[17]     The flat is a two bedroom flat.  All items were found in the lounge or in the main bedroom.

[18]     I deal first with a general submission advanced by Ms Sziranyi.  It was her submission that items found in the flat that could not be linked directly to the accused lacked sufficient nexus to be admissible.  In her submission since it was not Ms E  ’s flat, there needed to be some other link.

[19]     I do not accept this.   Ms E   was present in the flat with drugs secreted on her.   In items directly linked to her (i.e. two bags), there is material

capable of pointing to her involvement in drug dealing.   In my view other items capable of pointing to drug dealing that are in the flat but not directly linked to her are still admissible to strengthen the inference that drug dealing was occurring.  That is a separate relevant trial issue.  Whether the totality of the circumstances connect her with some of that other evidence, all of it or sufficient of it for the charge to be proved is a matter for the jury.

[20]     That conclusion deals with most of the challenges – in particular the items in the red satchel, the green and brown/black bag, and the toilet bag.  In the toilet bag was a pill bottle which was empty save for one empty capsule.  However, the capsule is the same type as the accused had secreted in her underwear and which contained the drugs.  The presence in another place of the same type of capsule is relevant.

[21]   There is evidence that 10 mobile phones were found, although nothing specifically links them to Ms E  .  However, it is open to the prosecution to allege that the large number of phones is consistent with drug dealing.   It is a significant number of operating mobile telephones to be found at one address.

[22]     In one of the notebooks found in the bags there is a list of names with figures next to them.   The figures are of amounts such as $100, $250, $300, $250.   The Crown submits it is a tick list;  Ms Sziranyi submits other interpretations are possible but that point cannot go to admissibility.  It is a jury matter as to what significance is attached to the list.

Issue Four – Photographs

[23]     The objections to the photographs turned in large part on the admissibility challenge to the item depicted in the photograph.  They are resolved by my earlier admissibility decisions.  However, some independent challenges remain:

a)       photographs 1 – 8 are of the exterior of the house, and the lounge/dining room.    They are of marginal relevance but the Crown submits it is helpful to know the small size of the flat given where items were found.   The photographs have some

relevance and carry absolutely no illegitimate prejudice so the photographs are admitted.

b)Photographs  54  –  57,  59  –  60,  74  –  77  and  79  are  of  the cellphones.  I see no prejudice in the fact they are individually photographed rather than in one group.  It is certainly arguable that there is no value in the photographs if there is no dispute that 10 phones were found, but it is sufficiently innocuous for me not to exclude the photographs.

c)       Photographs 82 – 84 are of the second bedroom.  Their purpose is to show it was unoccupied, so there was no one else who could have been responsible  for what  was found.    They are admissible.

Issue Five – Exhibits 6 and 9

[24]     Two items that are to be produced were specifically challenged.

[25]     Exhibit 9 refers to a blue notebook.   Which notebook is intended to be produced is unclear.  Once the correct exhibit has been identified, if there remains a challenge it will need to be dealt with by the trial Judge.  Generally on the topic of the three notebooks, if it is intended to introduce the complete notebooks as exhibits, they should be checked to ensure there is no prejudicial material on the irrelevant pages.

[26]     Exhibit 6 is the blue and white capsule found in the toilet bag.  I have already dealt with that (paragraph [20] above).

Conclusion

1.        The application under s347 is dismissed.

2.Concerning   Detective   Chenery,   the   deletions   noted   in paragraph [14] are to be made as agreed.   In addition the brief is to be redrafted as noted in paragraphs [12] and [13], and the penultimate paragraph of page 11 is to be deleted, but its message can be clarified in the general section.  Finally, the section headed “Effects of Methamphetamine” is provisionally excluded.

3.        The nature of exhibit 9 is to be clarified.

4.All other admissibility challenges, both to items to evidence and to the photographs, are dismissed.

Simon France J

Solicitors:

Crown Solicitor’s Office, Wellington for the Crown

Thomas Dewar Sziranyi Letts, Lower Hutt for the Accused