R v H HC Auckland CRI 2006-004-1208

[2007] NZHC 2011

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-001208

THE QUEEN

v

H
H
S
S

Hearing:         16 August 2007

Appearances: Michael Smith for Crown

John Watson for Kaelib H 

Richard Earwaker for Tarnika H   Graeme Newell for Victoria S   Mark Ryan for Sophie S 

Judgment:      17 August 2007

JUDGMENT OF HARRISON J

SOLICITORS

Marsden Woods Inskip & Smith (Whangarei) for Crown

John Watson (Whangarei) for H   Richard Earwaker (Auckland) for H   Graeme Newell (Auckland) for V S   Haigh Lyon (Auckland) for S S 

R V H AND ORS HC AK CRI 2006-004-001208  17 August 2007

Introduction

[1]      Mr H  , Ms H  , Ms S   and Ms S   have been committed for trial in this Court on charges of conspiring to supply and manufacture methamphetamine.   Ms S   faces separate charges of supplying a precursor and possessing utensils for the purposes of consuming  or injecting methamphetamine.   Counsel for all accused have applied for orders discharging them from trial, relying on the ground of insufficiency of evidence to support the charges.

[2]      At the conclusion of evidence yesterday I advised of some provisional views. First, I was satisfied there was a sufficient evidential foundation for both charges against  Mr H  .   Indeed his counsel,  Mr John  Watson,  had  not  attempted to submit otherwise and I was unable to understand the rationale for his appearance.  I note also that Mr Watson had not filed an application for discharge.

[3]      Second, I accepted a submission  from Mr Richard Earwaker,  counsel for Ms H  , that there was insufficient evidence to support a charge of conspiring to manufacture methamphetamine against her.   However, there was a sufficient evidential basis for the charge of conspiring to supply.  Ms H   was absent from Court because she was unwell.   I was unable to discharge her on the charge of conspiring to manufacture.  I am adjourning the proceeding against her until 9.30 am on 24 August 2007.   She can appear  formally to  be discharged on the count of conspiring to manufacture.

[4]      Third,  I  was  satisfied  there  was  insufficient  evidence  to  support  either conspiracy charge against Ms Victoria S  .   However, I indicated my view that there was a sufficient evidential basis to support other charges, particularly of supplying a precursor substance, namely pseudoephedrine.  On this basis argument was adjourned.

[5]      Mr Michael Smith for the Crown tendered with leave a new indictment.  He offered no evidence on the two conspiracy counts.   Ms S   was discharged on them   accordingly.      She   then   pleaded   guilty   to   the   charges   of   supplying

pseudoephedrine and possessing a pipe and a syringe for the purposes of consuming and injecting methamphetamine.   She was convicted and remanded in custody for sentence on 25 September 2007.

[6]      Accordingly, the only application outstanding is by Ms Sophie S    for discharge on both counts of conspiracy.  In this respect the test is well settled.  The question is whether a jury properly directed (that premise is not always effected in practice) could reasonably convict on the evidence.   Questions of credibility and weight are to be determined by a jury.  Unless the evidence is clear cut in favour of an accused, the charge should be left to the jury: Parris v Attorney-General [2004] 1

NZLR 519 (CA).

[7]      I have found practical assistance in dealing with this question by inquiring, on the assumption that the accused will not give evidence at trial, whether for the purposes of summing-up I could identify sufficient material from which a jury might logically infer that the accused is guilty.

Conspiracy

[8]      The  elements  of  the  crime  of  conspiracy  have  been  discussed  in  many authorities: see R v Gemmell [1985] 2 NZLR 740 (CA). In this case counsel relied on the decision of Winkelmann J in Sun v R HC AK CRI 2006-4-3200 22 September

2006 at [13] where Her Honour, in a case analogous to this, postulated the inquiry as whether there was evidence capable of supporting an inference that: (a) the accused knew sufficient details of the offence to be committed; (b) he intended to agree with another and/or others to manufacture methamphetamine, and did so agree; and (c) he intended to carry through the common design, that is, to see the methamphetamine manufactured.

[9]      The elements of the test have been expressed in different terms but to the same effect by Fisher J in R v Richards (1992) 9 CRNZ 403 at 414 as follows:

(a)       That that accused and at least one other alleged conspirator intended to carry out a scheme to manufacture or supply heroin as the case may be;

(b)       That  that  intention  was  outwardly  expressed  in  the  form  of  an agreement between that accused and that other conspirator or conspirators; and

(c)       That that accused and the other conspirator or conspirators agreed and intended either personally to assist in carrying out the scheme itself or to do something which would encourage others to carry it out. Examples of the former would include agreeing to collect Panadeine tablets, act as an intermediary to relay messages, collect heroin when ready, or generally assist if called upon. Examples of the latter would include agreeing to receive or pay for heroin when available.

[10]     In my view the Crown must prove that, first, each person intended to commit an offence; second, the intention is manifested in an agreement or accord to that effect; and, third, each intended to assist the other in taking a step in furtherance of the common design.  It is, of course, rare to find that those who conspire to commit an offence reduce their agreement to written form or even express it in the traditional language of offer and acceptance.  Almost invariably in drug cases its existence is to be inferred from the circumstances, frequently from intercepted communications.

Facts

[11]     It  seems  that  Mr H    was  the  central  figure  in  the  activities  under consideration.  He was the hub around which his three female co-accused revolved. Evidence  has  been  led  that  he  was  in  relationships  of  intimacy  with  at  least Ms H   and Ms Sophie S  , apparently at the same time.   Mr Smith for the Crown submits that Mr H   used his position to influence both women to supply him with precursor substances in exchange for other benefits.

[12]     The  Crown  relies  principally  upon  intercepted  communications  between Mr H   and Ms S  , either by way of text messages from mobile phones or telephone conversations.  A detective interviewed Ms S   afterwards.  Her lengthy statement is largely exculpatory.   Mr Mark Ryan for Ms S   relied upon it to support this application.  But her statement is constituted solely by denials which are not evidence given on oath and has no relevance in this context.  A jury might give it such weight as it considers appropriate.

[13]     I must  focus on the intercepted communications themselves.   There were three principal telephone conversations, the last two within a matter of minutes of each other.  The first was on 20 December 2005.  Mr Smith submits that it is the first major step in forming the conspiracy.   He refers to a number of phrases which he says are coded drug manufacturing or dealing references.   For example, there is a discussion about ‘de-shelling’ or ‘little balls’.   I am prepared to accept for these purposes that  Mr H    and  Ms S    were  discussing  Contac  NT,  a Chinese pseudoephedrine bearing product.

[14]     The  logical  inference  to  be  drawn  from  the  conversation  is  that  it  is  a discussion about pseudoephedrine and its precursors.  There are coded references to iodine, a precursor substance.  The Crown may draw from it evidence of Ms S  ’ participation in the charge of offering to supply precursors.   That is not enough, however, to provide the foundation for a conspiracy charge.   It does not prove a common intention manifested in an agreement to do anything.  At best for the Crown it is, as I say, a discussion about drugs.

[15]     The second discussion was on 21 December 2005.  It opens with Ms S  ’ advice to Mr H   that someone was downstairs waiting for ‘um water liquid’ and that he had been there all day.   Mr H   responded by asking about the deal. Ms S   refers to somebody having a watch which was available for exchange for other substances.

[16]     Again I agree with Mr Smith that a jury could logically infer that Ms S  ’ references to ‘water liquid’ were to hypophosphorous acid, another precursor substance.  Again there is, in this conversation also, a proper evidential basis when considered with other intercepted messages for a charge of offering to supply or agreeing to  supply a precursor.   In context  I read the  exchange as evidence  of Ms S  ’ ability to introduce a third party to Mr H   who was available to supply hypophosphorous acid.  But it does not support a conspiracy charge.

[17]     The third is again on 21 December.  Again I am satisfied that Mr H   and Ms S   were discussing pseudoephedrine and its precursors.   A jury could infer that Ms S  ’ references to her sister thinking ‘she got ripped because she ended up

cutting down for you’ or that ‘she went from her 4 or 3.8 to 3.5’ were to her sister’s fate in certain drug deals with Mr H  .  The inference a jury could draw from the conversation is that  it  was devoted towards a discussion about  what  Mr H   would provide, whether by way of money or other goods, in exchange for precursors which Ms S   agreed to supply.   Even the concluding references to ‘6 grand’, which Mr Smith said equates to the price of one ounce of methamphetamine, must be read in that context.

[18]     The contents of these three discussions between Mr H   and Ms S   and their text messages, both separately and together, fall well short of providing a proper evidential foundation for drawing a logical inference that the two had got to the point of agreeing to manufacture or supply methamphetamine.   They display Ms S  ’ knowledge of Mr H  ’s activities and provide evidence to support, as I  have  said,  the  lesser  charges  of  supplying  or  offering  to  supply  precursor substances.  But they do not reach the next evidential threshold, and do not justify conspiracy charges.

[19]     Accordingly,  I  discharge  Ms Sophie  S    on  counts  1  and  3  of  the indictment; that is, of conspiring with the co-accused to supply and manufacture methamphetamine.   The Crown, of course, will be entitled, if it so intends, to lay lesser charges against Ms S   based on the same evidence.

[20]     I wish to  express  my appreciation to  all counsel for  the quality of their written and oral submissions over the past two days.

Rhys Harrison J