R v H HC Whangarei CRI 2005-092-14046

[2007] NZHC 407

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2005-092-014046

THE QUEEN

v

H

Hearing:         1 May 2007

Appearances: Mr M Smith for Crown

Mr G Anson for accused

Judgment:      1 May 2007

ORAL JUDGMENT OF WINKELMANN J

Crown Solicitor, Whangarei

G Anson, Barrister, Kerikeri

R V  H HC WHA CRI 2005-092-014046  1 May 2007

[1]      Prior to the commencement of a trial in which Mr H   is charged with three counts of conspiracy to supply material (hypophospherous acid) capable of being used for the manufacture of methamphetamine Mr Anson, recently retained counsel, raised two admissibility points in relation to the bulk of the evidence proposed to be led against Mr H  .  The Crown case is based almost exclusively on intercepted telephone conversations and text messages intercepted pursuant to a warrant issued under s 15 of the Misuse of Drugs Act 1978.

[2]      Firstly, Mr Anson submits that such evidence is not admissible in relation to the offences charged against Mr H   because those offences do not fall within the categories of offences listed in s 26(1) of the Misuse of Drugs Amendment Act 1980, being neither specified offences or drug dealing offences.

[3]      The second point is Mr Anson takes is that there is insufficient evidence to enable me to be satisfied independent of the statements of the alleged co-conspirators that the accused was involved in the alleged conspiracy.   In those circumstances, Mr Anson submits that I should not allow the evidence of the alleged co-conspirators to be placed before the jury.

[4]      The Crown concedes that the objection based upon s 26 of the Misuse of Drugs Amendment Act 1978 is well founded.   Mr Smith explains that he had not previously been alerted to the issue because other co-accused had been charged with conspiracy to manufacture methamphetamine, an offence in respect of which the intercepted conversations and communications would have been admissible pursuant to the provisions of s 26.  A number of other co-accused have pleaded to the lesser charge of conspiracy to supply and the decision was taken to lay that lesser charge against Mr H  .

[5]      In the circumstances Mr Smith seeks leave to amend the indictment to charge three counts of conspiracy to manufacture methamphetamine.   He says that this is appropriate to avoid the matter being dealt with on a technical basis under s 26.  He says that such an amendment is desirable since other co-offenders had been charged with conspiracy to manufacture methamphetamine and have pleaded on the basis of

these intercepted conversations being admissible evidence.  However, he says that if that amendment is made the Crown would concede that there is insufficient evidence in support of those counts to allow the matter to proceed before the jury.

[6]      Mr  Anson does  not  oppose this  course of action,  and  submits  that  it  is appropriate that Mr H   be discharged given the state of the Crown evidence.

[7]      I  am  satisfied  that  it  is  appropriate  both  to  grant  leave  to  amend  the indictment as requested by Mr Smith and secondly, that it is also appropriate to grant Mr Anson’s application for discharge pursuant to s 347 in respect of the newly amended counts.  There is insufficient evidence to enable a reasonable jury, properly directed, to convict Mr H   on any of the three now amended charges.

[8]      Mr H   please stand.   You are discharged on counts 1, 2 and 3 of the indictment.

Winkelmann J