R v J HC Auckland Cri-2006-057-1237

[2007] NZHC 516

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-057-001237

THE QUEEN

v

J

Hearing:         21 May 2007

Appearances: Brett Tantrum for Crown

Sean Ellis for Accused/Applicant

Judgment:      21 May 2007

JUDGMENT OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown

Sean Ellis (Auckland) for Accused

R V JOSEPH HC AK CRI-2006-057-001237  21 May 2007

[1]      Mr Henry J   has been committed for trial in this Court on five charges under the Misuse of Drugs Act 1975.  Trial was due to commence at 10 am today. However, I granted a brief adjournment so that he could provide full instructions to his counsel, Mr Ellis, who at late notice was assigned.

[2]      After taking instructions Mr Ellis advised that Mr J   wished to enter pleas of  guilty to  four of  the  five charges.    In  accordance  with  that  indication Mr J   was arraigned.  He pleaded guilty to possession of equipment capable of being  used  to  manufacture  methamphetamine,  possession  of  material  for  that purpose, possession of a precursor substance, and possession of pipes for smoking methamphetamine.

[3]      Mr J   has, however, pleaded not guilty to the remaining count.   He is charged  with  manufacturing  methamphetamine  at  Pukekohe  between  1 February

2006 and 6 April 2006.  On his behalf Mr Ellis has applied for an order discharging

Mr J   from trial on that remaining count.  Mr Tantrum for the Crown opposes.

[4]      I have heard concise argument from both counsel.  There is common ground that, first, Mr J   was on 6 April 2006 in possession of a par bomb and, second, that item was previously used in manufacturing methamphetamine.   On these two facts Mr Tantrum submits that a jury properly directed could draw an inference that Mr J   was, to use his words, ‘involved’ in manufacturing methamphetamine. However, as he accepts, at the best for the Crown Mr J  ’s involvement would be limited to the status of a party who aided or abetted commission of the offence of manufacturing methamphetamine.  There is no evidence to implicate Mr J   as a principal.

[5]      After reflecting on submissions over the morning adjournment, I am satisfied that Mr Ellis is correct.  In the event that Mr J   was placed on trial, I would have to give careful directions to the jury on drawing inferences.  In particular, the jury cannot guess or speculate.   In my judgment the critical factor is the absence of evidence that the par bomb was used in manufacturing methamphetamine in the nominated  two  month  period  between  1 February  2006  and  6 April  2006.    As Mr Ellis  concedes,  the  position  would  be  otherwise  if,  for  example,  there  was

evidence that the par bomb was clean or clear of methamphetamine when it first came into Mr J  ’s possession.  However, the evidence simply establishes that at some time, whether during the nominated period or earlier, the par bomb was used for committing the crime.  On this basis there is an insufficient evidential foundation for the charge to go to the jury for it to draw a safe inference of guilt.

[6]      There is no injustice arising from this conclusion.   Mr J   has pleaded guilty to the charge of possessing a par bomb together with other items that were capable of being used to manufacture methamphetamine and, most significantly, with the requisite intention to that end.   He has also admitted possession of other material  which  was  capable  of  being  used  in  manufacturing  methamphetamine. Those charges, in my judgment, are appropriate for offending of this nature.

[7]      Accordingly,   I   discharge   Mr   J     from   trial   on   the   charge   of manufacturing methamphetamine.

Rhys Harrison J