R v Kitson - [2013] NZHC 2691

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kitson

Details

AGLC: R v Kitson [2013] NZHC 2691
Case: [2013] NZHC 2691
Decision Date: 4 September 2013

CaseChat Overview and Summary

In the case of R v Kitson, the defendants, James Dale Kitson and Vincent Kitson, were charged with conspiracy to manufacture methamphetamine. Following the Crown's evidence, both defendants sought discharge under section 347 of the Crimes Act 1961 on the grounds that there was insufficient evidence to proceed to a jury. The High Court of New Zealand Auckland Registry considered the legal principles governing conspiracy, the sufficiency of evidence, and the distinction between conspiracy and aiding and abetting. The court found that while there was evidence that the defendants supplied materials used in methamphetamine manufacture, there was insufficient evidence to support the inference that the defendants had agreed to and intended to manufacture methamphetamine as part of the conspiracy. Consequently, the court granted the defendants' applications for discharge, determining that the evidence was insufficient to establish a conspiracy to manufacture methamphetamine.

Orders