R v Kitson
[2013] NZHC 2691
•4 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-15061 [2013] NZHC 2691
THE QUEEN
v
JAMES DALE KITSON and VINCENT KITSON
| Hearing: | 4 September 2013 |
Counsel: | I Brookie for the Crown M Dyhrberg for James Kitson S Lance for Vincent Kitson |
Judgment: | 4 September 2013 |
Reasons: | 16 October 2013 |
REASONS FOR JUDGMENT OF WOODHOUSE J
(Crimes Act 1961, s 347 discharge)
Counsel:
Mr I Brookie, Barrister, Auckland Ms M Dyhrberg, Barrister, Auckland Mr S Lance, Barrister, Auckland
R v KITSON [2013] NZHC 2691 [4 September 2013]
[1] The defendants were charged with conspiracy to manufacture methamphetamine. At trial, following the evidence for the Crown, both defendants sought discharge under s 347 of the Crimes Act 1961 on the grounds of insufficiency of evidence to go to the jury. An order of discharge was made with reasons to follow. These are my reasons.
The conspiracy charge and its elements
[2] The conspiracy count was as follows:
The Crown Solicitor at Auckland charges that James Dale Kitson and Vincent Kitson, between 22 November 2011 and 20 September 2012, conspired together, and/or with others, to manufacture the class A controlled drug methamphetamine.
Representative charge
[3] Before the defendants were discharged a draft guideline for the jury of the elements of the charge had been discussed with counsel. The count contained a range of alternatives as to the conspirators. For the Crown, Mr Brookie accepted that there was no evidence to support the possibility of a conspiracy between Vincent and James Kitson alone. With that possibility excluded, counsel agreed on the elements of the charge as they should be put to the jury. They were the same for Vincent and James Kitson. The agreed elements expressed in relation to Vincent Kitson were:
(a)On one or more occasions between 22 November 2011 and 20 September 2012 Vincent Kitson came to an agreement either with James Kitson and others unknown, or with others unknown.
(b)It was an agreement that methamphetamine be manufactured, with Vincent Kitson’s role being to supply iodine or hypophosphorous acid for that purpose.
(c)Vincent Kitson intended as part of the agreement that methamphetamine be manufactured even though he would not be involved directly in the manufacturing process.
The evidence relied on by the Crown
[4] The Crown case in broad terms was as follows. On a number of occasions Vincent Kitson imported substantial quantities of hypophosphorous acid (acid) and iodine. Details of customs declarations, names used for the consignee, and other evidence, indicated an intention to import without the contents being identified and in ways which would not identify Vincent Kitson as the importer. Vincent Kitson is James Kitson’s uncle. There were links between the two relating to the imports. Text messages and emails established that the defendants, and James Kitson in particular, supplied the acid and iodine to other people. James Kitson also sold methamphetamine, and there were 15 further charges against him of supplying methamphetamine on specific occasions between 2 August 2012 and 16 August 2012 with a further representative charge of supplying methamphetamine. The 15 charges of supply on specific occasions involved small quantities sold at retail, ranging between 0.01 grams and 0.5 grams, with the total over the period being 2.4 grams.
[5] There was a substantial body of evidence to support the Crown’s contentions and much of this evidence was not challenged to any extent. The strength of the Crown case against James Kitson for supplying methamphetamine was demonstrated by subsequent guilty pleas.1
[6] Mr Brookie identified seven main points in support of his submission that there was sufficient evidence to go to the jury on the conspiracy charge. In summary, these were as follows:
(a)Large quantities of acid and iodine were imported by Vincent Kitson. The evidence relating to the importations demonstrated that Vincent Kitson’s intentions were unlawful.
(b)These materials were then supplied to others. This was mainly handled by James Kitson.
1 Following discharge of the defendants on the conspiracy count James Kitson pleaded guilty to the 15 charges of supply on specific occasions. The Crown offered no evidence on the representative charge which was dismissed.
(c)The nature and content of communications and the very high prices sought and paid also demonstrated unlawful intentions. Had the supplies been for lawful purposes the acid and iodine were readily available from legitimate suppliers and could have been bought for prices far below those that were paid. The inference was that they were not bought from legitimate suppliers because of police monitoring of purchases from legitimate suppliers.
(d)It could be inferred that the defendants were dependent on methamphetamine being manufactured in order to sustain their ongoing business of importation and supply.
(e)James Kitson was involved in selling methamphetamine.
(f)There was evidence of connection on one occasion with methamphetamine manufacture. This came from Windows messaging between Vincent Kitson (or from his computer) and James Kitson. James Kitson asked his uncle if he had got “that stuff”. Subsequent messages from Vincent Kitson to James Kitson indicated that Vincent Kitson knew that another person was drying methamphetamine and that James Kitson wanted to get hold of this as soon as possible.
(g)There was evidence from texts between James Kitson and an unknown person relating to supply of iodine to that unknown person. That person asked whether payment could be made in methamphetamine. James Kitson said it depended on the quality and quantity and said “usually just down for hard and fast cash tho”.
Principles under s 347 of the Crimes Act 19612
[7] When a defendant applies for discharge on the grounds of insufficiency of evidence, the correct approach was stated by the Court of Appeal in Parris v Attorney-General as follows:3
2 Now s 147 of the Criminal Procedure Act 2011.
3 Parris v Attorney-General [2004] 1 NZLR 519 (CA).
[13] We suggest that it is helpful in such circumstances, and indeed in s 347 situations generally, to correlate the exercise upon which the Judge is engaged with the function of this Court when considering an appeal on evidentiary grounds. Section 385(1)(a) of the Crimes Act 1961 provides that if the verdict of a jury is unreasonable or is not supported by the evidence the appeal is to be allowed. Hence when faced with a s 347 application, whether on the depositions, at the close of the Crown case, or after defence evidence has been heard, the Judge can usefully be guided by the same concepts. There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.
[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence. In making these remarks we have largely accepted Mr Powell's submissions which properly emphasised the matters we have mentioned.
[8] In most cases where conspiracy is alleged the Crown case will depend on inferences. In R v Flyger4 the Court of Appeal approved the statement of Tompkins J in R v Adams, as follows:5
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.
Conspiracy: the elements in principle
[9] An authoritative statement of the elements of conspiracy is that of the Court of Appeal in R v Gemmell:6
4 R v Flyger [2001] 2 NZLR 721 (CA) at [18].
5 R v Adams HC Auckland T240/91, 8 October 1992 at p 4.
6 R v Gemmell [1985] 2 NZLR 740 (CA) at 743-745.
A criminal conspiracy … consists in an intention which is common to the minds of the conspirators and the manifestation of that intention by mutual consultation and agreement among them. It is of the essence of a conspiratorial agreement that there must be not only an intention to agree but also a common design to commit some offence, that is, to put the design into effect. ... To have the necessary knowledge for conspiracy a person must know what he is supposed to have agreed to do. That is to say there must be an intention to be a party to an agreement to commit the specific offence to which the conspiracy is directed: R v Churchill [1967] 2 AC 224, 237. However, he need not know that what he is alleged to have agreed to do is unlawful (ibid, 237). An apparent agreement which stops short of an intention to carry the offence through to completion is not enough. In R v O’Brien [1955] 2 DLR 311, a decision of the Supreme Court of Canada, it was contended that T, O’Brien’s co-conspirator, did not have any intention to carry through the common design and so could not be a party to the conspiracy. This submission was accepted by the majority of the Court. Taschereau J, one of the majority said:
“I think there has been some confusion as to the element of intention which is necessary to constitute the offence. It is, of course, essential that the conspirators have the intention to agree, and this agreement must be complete. There must also be a common design to do something unlawful, or something lawful by illegal means. Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement. I cannot imagine several conspirators agreeing to defraud, to restrain trade, or to commit any indictable offence, without having the intention to reach the common goal.
…
The definition of conspiracy itself supposes an aim. People do not conspire unless they have an object in view. The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialised, and does not become harmful to any one. The intention must necessarily be present because it is the unlawful act necessarily flowing from the intention, that the state wishes to prevent” (ibid, 313-314).
(original emphasis)
Cf R v Thomson (1965) 50 Cr App R 1.
To return to the traditional nomenclature of the criminal law, the mens rea is the intention of the conspirator to achieve the common design and his mind must go with the apparent manifestation of his consent. The actus reus of the offence of conspiracy is the agreement which has a common design. The actus reus does not exist in mere formulation of an intention in the minds of
two or more persons to commit a crime; there must be an agreement into which that intention is translated. The offence of conspiracy consists “not merely in the intention of two or more but in the agreement of two or more” (Mulcahy v R (1868) LR 3 HL 306, 317, emphasis added), and, as it was put in R v Meyrick (1929) 21 Cr App R 94, 101-102, the prosecution must establish not that the individuals are in direct communication with each other, or directly consulted together, but that they entered into an agreement with a common design. It is necessary only to add that because direct evidence of the making of the agreement and its nature or terms is rarely available, proof will almost always depend upon evidence of acts or declarations by persons alleged to be parties to the conspiracy or the inferences to be drawn from them. But we emphasise that it is not the acts which constitute the conspiracy; they are only the evidence from which the agreement may be inferred.
[10] In this case the Crown contended that part of the conspiracy was that the Kitsons would supply acid or iodine for the purpose of manufacture. The role attributed to the defendants has the hallmarks of aiding or abetting. The distinction between conspiracy and aiding and abetting required consideration in Gemmell. The Court of Appeal said:7
A conspiracy is not the same thing as aiding and abetting since the two offences have different ingredients: Adams on Criminal Law (2nd ed) para 2358. And in Koury v The Queen (1964) 43 DLR (2d) 637, Spence J, delivering a judgment in the Supreme Court of Canada in which Taschereau CJC, and Fauteux, Abbott, Judson and Martland JJ concurred, said:
“Aiding and abetting pursuant to a common intent and design is not necessarily the same thing as the conspiracy charged in count 5 [a conspiracy to defraud] and it is not the same thing in this case” (ibid, 650).
Again in R v Clark [1951] OR 791 it was held that one who knows that other persons have agreed to commit a crime, but is not a party to that agreement, and does acts designed to assist in the carrying out of the crime, is not an accomplice in the offence of conspiracy, although he may be an accomplice in the substantive offence if it is committed.
Roach JA delivering the judgment of the Court of Appeal of Ontario in that case said:
“The crime of conspiracy, for the purpose of the instant case, consists in the agreement between two or more persons to do an illegal thing. It has been said, times without number, that the gist of conspiracy is the agreement. When it is remembered that agreement is the gist of the offence it becomes clear that none of those things on which counsel relied could stamp Morrison as an accomplice to the agreement by Fraser to commit any indictable offence. The preparation for the alibi, the fixing of the flashlight, the inspection of
the area, had nothing whatsoever to do with Fraser agreeing to break and enter any premises. The agreement was complete before any of those things were done. They were subsequent to and consequent upon the earlier agreement. They did not assist in bringing about the agreement. No matter what other crimes she was or might have been an accomplice in, I am satisfied that she was not an accomplice to the conspiracy. She was a witness to it but not a party to it” (ibid, 807).
[11] In this case the Crown alleged a chain conspiracy. The defendants’ principal activities were said to be at the beginning of the chain through the supply of iodine and acid. There were said to be further links at the end of the chain with prominent aspects of this being the points of evidence summarised above at [6](d)-(g).
[12] A chain conspiracy relating to the illegal supply of cocaine was considered by the Court of Appeal in R v Morris (Lee).8 The charge was that the appellant, Morris, conspired with Clark and Fletcher to supply, or offer to supply, cocaine to a person or persons unknown. Part of the Crown case was that Clark and Fletcher were wholesalers who sold to Morris in the expectation that Morris would resell at retail. A primary issue was whether there was evidence that sales at retail were part of the conspiracy; whether Clark and Fletcher agreed with Morris that, and had the
requisite intention that, Morris would on-sell to others. It was argued for Morris that mere expectation on the part of Clark and Fletcher that Morris would resell was insufficient. The Court held:
[26] … Whilst it may be true that a mere expectation by one or more participants does not go far enough to bring the anticipated event within the conspiracy, the Crown needs to do no more than show that the alleged conspirators, including the accused, agreed to join in a chain of distribution of the illicit drug in question with the common intention or common understanding that on-sales would take place.
Discussion
[13] Proof of an agreement between Vincent Kitson (or James Kitson or both) and X, for X to buy iodine from Vincent Kitson, and with Vincent Kitson knowing that the iodine was to be used for methamphetamine manufacture, would not by itself prove a conspiracy to manufacture methamphetamine. There would also have to be evidence of an agreement between Vincent Kitson and X that X (or some other
person down the chain after X who was part of the conspiracy) would manufacture methamphetamine and with Vincent Kitson and X, at the time of their agreement, intending that methamphetamine would be manufactured. In my judgment that distils the principles discussed in Gemmell and applies them to the Crown case against Vincent and James Kitson. The second part of the preceding analysis – the intention at the time of the agreement – is the essential part.
[14] I dismissed the charge because I was satisfied that the evidence adduced by the Crown was insufficient to go to the jury to establish the second part. In essence, there was sufficient evidence to go to a jury only in relation to the first part of the analysis – an agreement by one or other, or both, of the Kitsons to supply the materials to others and evidence capable of supporting an inference that the Kitsons knew, or at least expected, that methamphetamine would be manufactured from the materials they supplied. But that would not be enough. Particular aspect of this conclusion are considered in the following paragraphs.
[15] The essential legal elements of an agreement, of the sort alleged by the Crown, and the necessary intention of the parties to that agreement, had to come together at the same time. This is made clear towards the end of the first passage cited from Gemmell when the Court said:9
… [T]he mens rea is the intention of the conspirator to achieve the common design and his mind must go with the apparent manifestation of his consent.
(emphasis added)
The Court there refers to the coming together of intention and agreement in relation to a single conspirator. But of necessity it applies to at least one other person, so that the two essential elements have to come together with at least two conspirators at the same time. On the Crown case, intention and agreement had to come together in the minds of at least one of the Kitsons and an unidentified conspirator at the same time. There was no evidence sufficient to go to the jury to that effect.
9 In this judgment at [9] above, immediately following the citation from the judgment of Taschereau J in R v O’Brien.
[16] This is not to say that the agreement and intention of an individual conspirator cannot be manifested at a time after other conspirators have already formed a conspiracy. But there was no evidence to support a proposition that either of the defendants joined a conspiracy, or conspiracies, already formed by others and Mr Brookie did not contend otherwise. Nor was there any evidence sufficient to go to the jury of a conspiracy to manufacture methamphetamine made between James and Vincent Kitson which was subsequently joined by another person.
[17] Mr Brookie, in submissions in reply, placed some emphasis on the evidence summarised above at [6](f). This evidence, considered in isolation, provides evidence of a degree of connection between both defendants and methamphetamine manufacture. However, it was not evidence which was reasonably capable of supporting the necessary inference of a pre-existing agreement that methamphetamine be manufactured and pre-existing intention on the part of the defendant, as part of that agreement, that methamphetamine be manufactured. It would have to have been a pre-existing conspiracy. And there would have to have been other evidence directed to the essential elements of the charge for the evidence summarised in [6](f) to be brought in by the jury to be reasonably capable of supporting the inference the jury would have to draw. That further evidence was missing.
[18] As already discussed, the Crown accepted that, for there to have been a conspiracy, there had to be at least one other person in the conspiracy in addition to either Vincent Kitson or James Kitson, or both defendants. That additional person did not have to be identified. But there had to be evidence to link that additional person, anonymously identified in the evidence, to a conspiracy already entered into with one or both of the Kitsons. There was no evidence, or certainly insufficient evidence, which would have properly enabled the jury to make such a link in respect of an agreement and intention required to constitute the conspiracy.
[19] The evidence relating to the importation of iodine and acid by Vincent Kitson was an important part of the Crown case. In my judgment there was no evidence that the importation was part of a common design with others to manufacture methamphetamine, and with one or both of the Kitsons “having”, to use the words of
Taschereau J cited in Gemmell, “the intention to reach the common goal” of methamphetamine manufacture.
[20] As earlier noted, an aspect of the Crown case was a chain conspiracy. Evidence in this case has some superficial similarities to evidence in R v Morris (Lee).10 In Morris, as earlier discussed, it was a conspiracy which involved, in terms of implementation, a chain of supply from the co-conspirator wholesalers to the appellant conspirator Morris and on-sale by Morris at a retail level to intended purchasers. The basis upon which Morris failed on his appeal points to an important difference between that case and the present. In Morris there was evidence that on- sales by Morris were part of the agreement between Morris and the wholesalers
giving rise to the conspiracy. Mr Brookie submitted that there was evidence in this case to similar effect in relation to manufacture. There is his submission, earlier noted, that the defendants had a business importing materials used for methamphetamine manufacture and from this it could reasonably be inferred that the defendants were dependent on methamphetamine being manufactured in order to sustain their ongoing business of importation. There was evidence capable of supporting such an inference. But that would not have established the elements of the conspiracy. There was other evidence of a broadly similar nature, such as the evidence referred to above at [6](g) relating to the possibility of iodine being supplied by James Kitson in exchange, at least in part, for methamphetamine. My conclusion is similar; in essence, it is evidence divorced from the critical evidence that was required to establish the elements of the charge.
[21] There was evidence which would have justified a conclusion by the jury that both defendants supplied the acid and iodine to others knowing that it would be used, or was likely to be used, in methamphetamine manufacture. This point, and the absence of serious challenge from the defence to it, was earlier noted. However, my conclusion was that this would not have enabled the jury properly to conclude that there was a conspiracy. It could have provided a foundation for conviction of the defendants for aiding and abetting in the manufacture of methamphetamine. But that could not have been properly used by a jury to find conspiracy to manufacture methamphetamine. This is for the reasons discussed in Gemmell in the second
10 R v Morris (Lee), above n 8.
passage earlier cited.11 Although there was the evidence of some connection with methamphetamine manufacture on one occasion, the charge was conspiracy, not being party to a completed offence of manufacture.
[22] Ms Dyhrberg, in support of her argument for James Kitson, relied on decisions of this Court in Sun v R12 and R v Beazley.13 Both judgments were on applications for discharge under s 347 for insufficiency of evidence on charges of conspiracy to manufacture methamphetamine. The decisions arose out of the same prosecution of a number of alleged conspirators. Both applications for discharge, one before the trial and one during the trial, were successful. The relevant facts in respect of both applicants have some broad similarities to the allegations in this case.
To the extent that the facts of other cases may assist in the determination of the applications by Vincent and James Kitson, my conclusion was that the Crown case in the two other cases was somewhat stronger than the Crown case against the Kitsons. This may be sufficiently illustrated by setting out Winkelmann J’s summary of the evidence relied on by the Crown in Sun v R:
[8] In relation to the conspiracy to manufacture methamphetamine, the Crown relies primarily upon text messages sent and received by Mr Sun and upon intercepted conversations. These communications were between the applicant and his co-accused, Mr Mosley. The Crown submits that these text messages and intercepted conversations establish the following:
(a)Mr Sun was supplying large quantities of pre-cursor substances to Mosley and that there were multiple supplies to the same purchaser, Mr Mosley.
(b)Mr Sun knew that the pre-cursor substances were being used for the manufacture of methamphetamine.
(c)Mr Sun was earning a substantial sum of money from his trade, and was hopeful of earning $2,000 to $3,000 per week from it.
(d)Mr Sun wanted to receive methamphetamine as part payment for the pre-cursors, but was unable to negotiate that arrangement.
(e)Mr Mosley was prepared to assist Sun with collection of a package of pre-cursors by providing a driver’s licence as proof of identity to collect a parcel and organising someone to pick up a parcel.
11 Above at [10].
12 Sun v R HC Auckland CRI-2006-004-3200, 22 September 2006.
13 R v Beazley HC Auckland CRI-2006-004-3200, 18 May 2007.
(f)Mr Sun knew that methamphetamine was being manufactured and knew of the names of others involved in manufacture, including Ms Whitley, one of the other suppliers of pre-cursor substances to the group and ‘Dannard’s Uncle’, it being alleged that Dannard was a ‘cook’.
[9] The Crown also refers to the intercepted conversations of other of the alleged conspirators with Mr Mosley (Whitley, Morris and Harris) in which Mr Sun is referred to. These conversations, it says, evidence that Mr Sun was well known to the group.
[23] The reasons I have earlier stated for discharging the defendants in this case are similar to some of Winkelmann J’s reasons for discharging Mr Sun. She said:
[15] Further, there is no evidence capable of supporting the inference that Mr Sun intended to carry through the design, that he was committed or intended to see the methamphetamine manufactured. Evidence that he was supplying a pre-cursor substance, even if the supply was of an on-going basis, and in substantial quantities, is not enough. Although Mr Sun no doubt wanted to be paid for that supply, there is no evidence that links his ability to be paid, to the manufacture of methamphetamine, so in turn committing him to the achievement of the manufacture. If there had been an agreement that he was to be paid partly in methamphetamine, that would have provided some evidence of the necessary intention to see methamphetamine manufactured, but the evidence fell short of that.
…
[18] The central issue therefore remains intention. It is not sufficient to show mere knowledge or even expectation or passive acquiescence in the manufacture. There must be an intention that the conspiracy be brought to fruition. In this case I am not satisfied that there is any evidence capable of supporting the inference that Mr Sun agreed to manufacture methamphetamine, or that he was committed to the manufacture taking place.
[24] The reasons for the s 347 discharge in R v Beazley, on broadly comparable allegations of fact, were similar to the reasons for the conclusion in Sun. It is unnecessary to summarise the facts in Beazley. What is relevant to note is that a submission was made to Allan J in Beazley that Winkelmann J’s decision in Sun was wrong in principle; in particular, that she had misapplied the principles discussed in
R v Morris (Lee). This concerned the distinction between mere expectation and a common intention. Allan J rejected that submission.14 He concluded:
14 R v Beazley, above n 13, at [30]-[33].
[33] … On the contrary, I consider her approach to be of material assistance here, in respect of an application exhibiting many similar features to that with which she dealt.
[25] Mr Brookie submitted that Sun turned on its own facts and referred to the decision of this Court in R v Su.15 The relevant facts in Su were summarised by Heath J as follows:
[129] There is evidence on which a jury could find:
a)Mr Su agreed with Mr Albert Rhodes and Mr Smethurst to go to China, to obtain pseudoephedrine and to transport it to New Zealand, so that they could use it to manufacture Methamphetamine.
b)The costs associated with Mr Su’s travel to and accommodation in China, acquisition of the product, arrangements for its carriage to New Zealand and Mr Su’s return travel to New Zealand were met by those involved in the alleged manufacturing ring.
c)Mr Su had previously dealt with Mr Rhodes. His conversations with Mr Rhodes and Mr Smethurst before and after his visit to China are indicative of prior purchases of Methamphetamine and knowledge that the pseudoephedrine was being brought to New Zealand for that particular purpose.
d)Mr Su was to be paid by the manufacturers, in all likelihood out of the proceeds of sale of the end product.
e)If Mr Su had declined to proceed with his agreement to import pseudoephedrine, that would have been of real consequence to the manufacturing operation carried out in New Zealand.
[26] In terms of sufficiency of evidence Su was materially different from the present case, and from Sun and Beazley. In Su Heath J did consider whether the decision in Sun was reconcilable with a decision of Fisher J in R v Richards [Conspiracy].16 The point of possible difference was whether a person could be guilty of conspiracy if that person had not agreed and intended to do something of a
positive nature to further the criminal design; whether “passive acquiescence” may be sufficient. Heath J concluded that the two decisions are reconcilable. In addition, and although Mr Brookie referred to some passages from the judgment in R v Richards, I do not consider that what is described, by way of shorthand, as “passive acquiescence”, is an issue which requires consideration in this case.
15 R v Su HC Auckland CRI-2006-092-16424, 10 July 2008. The full discussion, on a s 347 application, is at [106]-[130].
16 R v Richards [Conspiracy] (1992) 9 CRNZ 403 (HC).
[27] It is for these various reasons that I was satisfied that the applications of the defendants should be granted.
[28] A further observation seems to be warranted. Charges of conspiracy alleging the involvement of defendants in a chain can involve a reasonable degree of legal complexity, leading to complexity for a jury in applying the correct legal principles to the correct issues of fact. A more straightforward approach in this case would appear to have been to have charged Vincent Kitson and James Kitson under s 12A(1) of the Misuse of Drugs Act 1975, which is as follows:
12A Equipment, material, and substances used in production or cultivation of controlled drugs
(1) Every person commits an offence against this Act who supplies, produces, or manufactures—
(a)Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or
(b)Any precursor substance—
knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.
[29] Section 6(1)(b), with s 6(2), of the Misuse of Drugs Act are the provisions making methamphetamine manufacture a crime.
Woodhouse J