R v L HC Hamilton CRI 2007-019-9621

[2009] NZHC 1586

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-019-009621

THE QUEEN

v

L
L

Hearing:         25 March 2009

Appearances: R G Douch for the Crown

A J S Snell for Christian Alfred L 

C M Clews and J Hamblett for Kieren Michael L 

Judgment:      25 March 2009

[ORAL] JUDGMENT OF WYLIE J

Solicitors:

Crown Solicitor, P O Box 19 173, Hamilton

A J S Snell, P O Box 101, Hastings

C M Clews, P O Box 19 133, Hamilton

J Hamblett, P O Box 1010, Waikato Mail Centre, Hamilton 3240

R V L AND ANOR HC HAM CRI 2007-019-009621  25 March 2009

[1]      Mr  L    and  Mr  L    are  charged  that  on  15  November  2007  at Hamilton they had in their possession the Class A controlled drug methamphetamine for the purpose of supplying or administering, or offering to supply or administer that drug to any other person, or otherwise deal in that drug.

[2]      The trial commenced on Monday 23 March 2009 in front of a jury.   The Crown called evidence from eight witnesses.   All were present or former Police officers.   An admission of facts document was also signed by both accused and it was read to the jury.

[3]      At the close of the Crown case, both Mr Snell for Mr L   and Mr Clews for Mr L   applied for the discharge of their respective clients pursuant to s 347(3) of the Crimes Act 1961.   I heard detailed submissions from both counsel and from Mr Douch for the Crown.  After an adjournment to consider the arguments which had been advanced, I directed that both of the accused be discharged.  That direction was given in open Court shortly after 4.10pm on Tuesday 24 March 2009. I indicated that my reasons would follow at 10.00am on Wednesday 25 March 2009. I now proceed to give those reasons.

Section 347(3) of the Crimes Act 1961

[4]      Section 347(3) provides as follows:

The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.

[5]      The power conferred by s 347(3) may be exercised at any stage of a trial. The grounds on which a discharge maybe granted are essentially the same as for a discharge under s 347(1).

[6]      Here both  Mr  Snell  and  Mr Clews  submitted  that  there was  insufficient evidence to justify the continuation of the trial.  The application of s 347(3) in this context was discussed in R v Flyger [2001] 2 NZLR 721. The Court of Appeal’s judgment was delivered by Anderson J. The key passages in that decision are set out in [13] to [16] and they read as follows:

[13]     The power to discharge an accused, accorded by s 347(3) of the Crimes Act, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury’s responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge’s  function in these  circumstances  is  not  to attempt  to  predict  the outcome but to examine the evidence in terms of adequacy of proof, if accepted.

[14]      In R v Myers [1963] NZLR 321 Wilson J expressed the opinion that pursuant to s 347(1) of the Crimes Act an accused could be discharged if:

“ . . . the Judge is satisfied that it is unlikely that any jury, properly directed, would convict, or, a fortiori, that it would be wrong for a jury to convict . . ..”

[15]     To the extent that Wilson J’s Minute may suggest a test involving judicial prediction of the verdict, we cannot agree. It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so tenuous as to lead a Judge to the view that the jury could not properly convict  and  accordingly  the  interests  of  justice  require  an  order  for discharge.  The  evidence  in  a  case  may  be  adequate,  if  accepted,  but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. It may be that in such circumstances a jury would be unlikely to convict, but the rationale for an order for discharge is not the likelihood of acquittal but the unsafeness of a conviction having regard to the evidence. Wilson J’s Minute in Myers was issued only 13 months  after  the  Crimes  Act  came  into  effect  replacing,  amongst  other things, the Grand Jury Procedure, the operation of which Wilson J may have had in mind when issuing his Minute. Subsequent authority does not support a predictive test.

[16]      We  consider that  the  correct judicial  approach  to  an  application pursuant to s 347 based on alleged insufficiency of evidence is the same as dealing with an application of no case. The principle of no prima facie case, or no case to answer, is founded in the common law. It is not displaced by s

347 of the Crimes Act but is incorporated in it where the submission is based on  alleged  inadequacy  of  evidence.  The  test  preferred  by  Greig  J  and

Doogue J in the cases previously mentioned in this judgment would displace

the concept of no case to answer if a Judge is trying a case without a jury, indictably, but it is not displaced when a Judge is trying a case, summarily, without a jury. There is no appropriate basis for this difference. Judges can and ought to distinguish between adequacy of evidence on the hypothesis of its acceptance, at one stage of a trial, and proof of a charge on the basis of actual acceptance, at a later stage. District Court Judges who, in their summary  jurisdiction,  may  have  to  apply  the  tests  consecutively  if  a defendant elects to call no evidence following a ruling that there is a case to answer, are astute to recognise that distinction.

[7]      Flyger was discussed and to an extent explained by the Court of Appeal in Parris v Attorney-General [2004] 1 NZLR 519. It was there noted by Tipping J as follows:

[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]      Against this background I now to turn to address the evidence presented by the Crown.

The evidence

[9]      At 1.30am on the morning of 15 November 2007, Sergeant Dale Smith was travelling south on Te Rapa Straight, State Highway 1, in Hamilton.  He observed a Ford Fairmont motor vehicle parked on the south side of Sir Tristram Avenue which leads from Te Rapa Straight to the Te Rapa racecourse.  He turned into Sir Tristram Avenue to investigate.  He saw a young woman in the passenger’s seat of the Ford Fairmont.  He became aware of another vehicle, a Ford Falcon XR6 parked on the

grass verge of Sir Tristram Avenue.  He saw that there were two people seated in the front seats of that vehicle.  The Sergeant went to the end of Sir Tristram Avenue, did a U-turn and came back to park in the middle of the road near the Ford Falcon XR6. He left his lights on.

[10]     He approached the driver’s door of the Ford Falcon XR6.  The window was lowered and the Sergeant spoke to the person in the driver’s seat.   He was subsequently identified as Mr L  .  The Sergeant shone his torch into the car and observed the passenger, who was subsequently identified as Mr L  , seated in the passenger’s seat.  He also observed part of a yellow engine de-greaser canister slotted between the centre console and the driver’s seat belt clip.  The officer noted that Mr L   appeared to be agitated and as a result he was put on alert.   He spoke to both accused and then went back to his own vehicle to make some checks. He asked the accused to wait in the Ford Falcon XR6.  They did so.

[11]     The officer was on his radio for a period and on two occasions Mr L   got out of the Ford Falcon XR6 and approached the Police car and asked how long the officer would be.  At one stage Mr L   also got out of the Ford Falcon XR6 as well.  The officer asked for back up and a short time thereafter another Police vehicle arrived.    It  also  parked  in  Sir  Tristram  Avenue  behind  the  Ford  Fairmont.    It contained two officers, Constables Grice and Jackson.

[12]     Constable Grice gave evidence of his arrival at the scene.  While he was in his own Police vehicle some 30 metres or so from the Ford Falcon XR6, he saw the person then seated in the driver’s seat of the Ford Falcon XR6 get out of the car and walk around to the front of it to the passenger’s side, beside the passenger’s door.  At the same time the other person who was in the Ford Falcon XR6 was also out of the vehicle and was standing on the passenger’s side.  The passenger’s side of the Ford Falcon XR6 was furthest from the Police car in which Constable Grice was seated, but he could see underneath the Ford Falcon XR6.  He saw something drop down in the vicinity of the passenger’s door and a foot push it under the car.  He could not tell what it was that had been dropped.  He had not noticed anything in the hands of the person who had walked around the front of the Ford Falcon XR6 immediately prior to this.

[13]     While Constable Grice stated in his evidence-in-chief that his impression was that Mr L   had dropped the object, he accepted in cross-examination as follows:

You talked of seeing the driver Mr L   come out of the vehicle, come around the front and around to where the passenger door is, is that correct? That’s correct.

That would place him on the opposite of the vehicle of you?  Yesw. The Falcon is between him and you?  Yes.

And you talked about the other passenger alighted from the vehicle and standing in the middle of the vehicle?  He was standing by the middle of the vehicle, I can’t recall if he was already out or got out, but as I recall it they were both standing on that side.

And  you  said  that  there  appeared  to  be  something  that  dropped  to  the ground?  Yes.

That was viewed by you effectively under the vehicle? That’s correct.

So your view of something dropping to the ground is the view you have underneath the vehicle from the light obviously from the Sgt’s car?  That’s correct.

And I think you have said that you saw a foot belonging to someone who you are not sure, push that item under the vehicle? That’s correct.

And you couldn’t identify what the object was cause you didn’t hav a good enogh view? That’s correct.

And you couldn’t identify which of the two males kicked it under the car? Yes.

And you can’t be sure how that object got out of the car can you?  No, like I

said I saw something drop, swept under.

At the time it dropped, the two men were close together, is that correct? Yes.

Whilst you have your suspicions it could have been Mr L  , you can’t see for sure?  No.

You’re agreeing with me?  I couldn’t say for sure who dropped the item.

[14]     Constable Grice told Sergeant Smith what he had seen and Sergeant Smith subsequently returned and checked under the Ford Falcon XR6.  He retrieved a black bag and a yellow canister from under the vehicle.   The black bag was opened by Sergeant Smith and he observed that it contained a number of pills.   The officer assumed that they were ecstasy pills.  The accused were given a warning and they

were spoken to.  Constable Grice spoke to Mr L  .  Mr L   said that he did not know  anything  about  the  bag.    Constable  Jackson  spoke  to  Mr  L  .    Mr L   said that he had no knowledge of what the Police had found and he then exercised his right to remain silent.  The two accused and the vehicles were taken back to the Police station for further investigation.

[15]     The Police examined the black bag in more detail at the Police station.   It contained a number of items including a set of keys and three plastic snaplock bags containing small pale green pills marked with the letters “CK”.  One bag contained

90 pills, another 15 pills and the third 27 pills.  The pills were subsequently analysed by ESR Limited.  They were found to contain 1-benzylpiperazine also as BZP.

[16]     A subsequent check was done at Mr L  ’s address in Auckland.   The keys found in the bag were to his flat and to his motor vehicle.

[17]     The yellow engine de-greaser canister contained a number of plastic bags, some of which contained a crystalline powder.    That  powder  was  subsequently analysed by ESR Limited.   One bag contained 25.7 grams of powder containing methamphetamine; another contained 1.2 grams of powder containing methamphetamine; two contained powder weighing 0.8 grams containing methamphetamine; and one contained powder weighing 0.4 grams also containing methamphetamine.  Two glass P pipes were also found by the Police on the grass verge some three metres from the rear of the Ford Falcon XR6.  On analysis, they were found to contain methamphetamine.

[18]     The  Police  also  seized  a  cellphone  from  Mr  L    on  the  morning  of

15 November 2007.   It was found on the floor pan of the Ford Falcon XR6.   The cellphone was analysed and data was extracted from it.   That data showed that Mr L   and Mr L   had been in contact with each other at relevant times by text.  They had arranged to meet in Hamilton.  Mr L   wanted to purchase pills from Mr L  .  I set out as follows the first 10 text messages from the exhibit produced by Detective Sergeant Russell:

Hey mate did u want to meet in hams 2nite 4 calvs party

So no go party in hams m8?

Cant really coz of time m8. Got work sleep and a funeral to get bak to 2mro and hams is far as I cn stretch it. I got birds in taupo or calv in hams

Sweet bro il sort sum thing out and meet you in h

Swt. Theres up to 4800 prepaid on th bar if u cn make it.  90swt though. I

shld b leavn taupo in a cupl hrs if u want 2 catch up in hams

Bout 125 at 36 a head

Yea bro its on il meet you in ham

Swt.  Il txt u whn I leav here –we shld get thre bout same time if u head down then m8.

Swwet bro I can cater the whole party

Awsm.

[19]     The other item of significance found in the Ford Falcon XR6 was the sum of

$4,005.  This was found in the glove box. In addition Mr L   had $420 on his person when he was subsequently searched.

[20]     The evidence made it clear that Mr L   had arrived at the scene in the

Ford Falcon XR6.  Mr L   had arrived with his girlfriend in the Ford Fairmont.

[21]     The various items found by the Police in the Ford Falcon XR6 were checked for fingerprints.  No fingerprints were found on them.  There was no DNA testing, and there were no other forensic tests linking either of the accused to the yellow engine de-greaser canister or the items found in it.

[22]     The  Police  subsequently  searched  Mr  L  ’s  address  in  Auckland. Mr L   rented that property with a number of other individuals.  Examination of the address by members of the Police Clandestine Laboratory Investigation team revealed chemicals and equipment present at the address.   Forensic scientists concluded that methamphetamine had been manufactured at the address.   These matters were contained in the admission of facts signed by the accused.

[23]     The Police also searched Mr L  ’s address in Napier and located three sets of electronic scales and $8,000.  On analysis it was found that some of the scales

bore traces of methamphetamine and/or cannabis residues.  Again this was contained in the admissions of fact document.

Submissions

[24]     The submissions advanced by Mr Snell and Mr Clews were to the same end, namely that there was no evidence sufficient to justify the continuation of the trial and that a properly directed jury could not reasonably convict either or both of the accused on the evidence presented by the Crown.  They submitted that the charge contains two key elements – possession and supply.   Both concentrated their respective submissions on possession.

[25]     The primary role in advancing the submissions was taken by Mr Snell.  He submitted that there was no evidence suggesting that either or both of the accused were in possession of the methamphetamine found in the yellow engine de-greaser canister.  He submitted that there were a number of scenarios open on the evidence and that there was no evidence supporting one over the other.  He emphasised that the canister when it was first observed by Sergeant Smith was beside the console in what he suggested was the communal area of the car.  He said that all of the evidence suggested that Mr L   had arranged to meet Mr L   to sell Mr L   some BZP pills which at the time were not classified as an illegal drug.  He said that there was nothing from which it could be inferred that the methamphetamine was in the possession of Mr L   or indeed that it was in the possession of Mr L   and that the legal elements of possession could not be made out.   He noted that the methamphetamine was in a sealed container and that there was nothing to suggest that if the drug belonged to one or other of the accused, that the other knew that the methamphetamine was within it or that it existed.

[26]     Mr  Douch  for  the  Crown  also  dealt  with  the  legal  elements  relating  to possession and submitted that there were two possibilities open to the Crown in the evidence – either the methamphetamine was in the possession of both because the deal between the two accused extended to include the methamphetamine as well as the BZP pills, or the methamphetamine was in the possession of only one of the accused and it did not form any part of the dealing between them.  He went through

the various aspects of the evidence which he submitted supported both scenarios.  If the latter scenario applied, he submitted that the methamphetamine was in the possession of Mr L   and he argued that the body of the evidence in the round supported that proposition.

Analysis

[27]     Here both accused have been charged as principals.  To obtain a conviction or convictions it is necessary for the Crown to adduce evidence sufficient to prove beyond reasonable doubt that either Mr L   or Mr L   or both of them were in possession of the methamphetamine.

[28]     The concept of possession in the context of the Misuse of Drugs Act 1975 was explained in R v Cox [1990] 2 NZLR 275. Hardie Boys J in the Court of Appeal’s judgment observed as follows at 278:

Possession  involves two,  not  three,  elements. The  first,  often  called  the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element  of  mens  rea,  is  a  combination  of  knowledge  and  intention: knowledge in the sense of an awareness by the accused that the substance is in  his  possession  (which  is  often  to  be  inferred  or  presumed);  and  an intention to exercise possession. In the leading case of R v Warner [1969] 2

AC 256, Lord Morris of Borth-y-Gest expressed it this way at p 289:

“In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances  which  showed  that  he  was  assenting  to  being  in control of it:”

[29]     To establish the mental element of possession there must be knowledge of the  presence  of  the  drug,  an  intention  to  exercise  possession  over  it,  and  a willingness to exercise that possession.  There can of course be joint possession by more than one person of a drug, e.g. where the drug is shared or where two or more people have an interest in the drug.

[30]     I deal first with the knowledge of the presence of methamphetamine at issue in this case.  There is a complete absence of evidence pointing the one way or the other in this regard.   If the drug belonged to Mr L  , there is nothing on the

evidence presented by the Crown suggesting that Mr L   was aware of it or knew of its existence.   If the drug belonged to Mr L  , equally there is no evidence  that  Mr L    was  aware  of  it  or  knew  of  its  existence.     The methamphetamine was hidden in a small container, and there is nothing to suggest which of the accused knew of its presence.

[31]     Nor is there any evidence suggesting which of the accused had an intention or willingness to exercise possession or control over the drug.   The canister was observed by Sergeant Smith beside the console in the middle of the car between the two front seats.  Physical custody of the drug is not required to prove control, but neither does physical custody alone suffice for control.   Here there is simply no evidence as to who had control over the de-greaser canister.  There was no evidence as to how it got into the Ford Falcon XR6.  While it was shifted and dropped and then kicked under the car by one or other of the accused on the morning of 15

November 2007, there is nothing in the evidence to prove beyond reasonable doubt which of the accused took those actions.

[32]     While various scenarios could be contended for by the Crown, in each case other rational scenarios were available on evidence.   To choose one or the other would require speculation by the jury and, on the evidence, all the Crown could do would be to invite the jury to guess as to who had possession of the drug.   Any resulting conviction or convictions would be unsafe.

[33]     I now deal with the two scenarios advanced by the Crown.

[34]     In my judgment there is nothing in the evidence to support the contention that the deal between the two accused extended to the methamphetamine and that it was in the possession of both of them.  Indeed the evidence points the other way.  First there  was  nothing  in  the  evidence  to  suggest  that  the  methamphetamine  was supplied.   There is no evidence as to its purity and Mr Douch accepted that the Crown could not rely on the statutory presumption of supply.   The drug was not packaged for supply.   It had not been broken down into the quantities in which methamphetamine is commonly sold.   There were no utensils found which would have enabled it to be readily broken down into smaller quantities.   The evidence

suggested that the accused were meeting to consummate the sale and purchase of BZP pills.   There was no reference in the text messages arranging the meeting to methamphetamine, nor was sufficient monies found in the Ford Falcon XR6 which would have enabled one or other of the accused to have purchased the methamphetamine  in  its  totality.    Rather  the  monies  found  were  sufficient  to purchase the quantity of pills referred to in the text messages at the price discussed in those messages.  The number of pills found in the black bum bag broadly tied in with the number of pills discussed in the text messages which the parties had exchanged proposing the sale and purchase of those pills.  The money was still in the glove box of Mr L  ’s car.  The pills were still in Mr L  ’s bum bag.  This suggests that the sale and purchase of the pills had not been concluded.  The transaction for sale and purchase of the pills was the only transaction or dealing which had any support in the evidence and in my view there is nothing in the evidence on which a jury properly directed could reasonably infer that the deal extended to the methamphetamine, and that therefore it was in the possession of both accused.

[35]     The Crown’s alternative opposition, namely that the drugs belonged to one or other of the accused and probably to Mr L  , is equally speculative.  Mr Douch relied on the location of the canister when it was first observed by Sergeant Smith. The canister was observed between the driver’s seat and the centre console.  It was not however in an area commanded exclusively by Mr L  .  Rather it was in the communal  area between  the  two  accused.    The  area  of the  console  was  small. Moreover other alternative explanations are available.   For example Mr L   could have taken the canister out of his bum bag and placed it beside the console to access the BZP pills to advance the transaction in relation to those pills.

[36]     Mr Douch referred to the peripheral evidence contained in the admission of facts.  The fact that traces of methamphetamine were found on electronic scales at Mr L  ’s address in Napier does not assist.   There is nothing to link that methamphetamine to the methamphetamine found under the Ford Falcon XR6.  Nor, for the same reason, does the fact that $8,000 was found at Mr L  ’s address help. Similarly the fact that methamphetamine was manufactured at some time by some body at the address Mr L   shared with a number of other people in Auckland does not assist.   All of this peripheral evidence is not evidence on which the jury

could properly rely the one way or the other in determining whether or not one or either or both of the accused were in possession of the methamphetamine found in the yellow engine de-greaser canister on the morning of 15 November 2007.

[37]     In my judgment there is no evidence on which the jury could properly find beyond reasonable doubt that either or both of the accused had possession of the methamphetamine.  I note that a similar conclusion has been reached in like, albeit not identical circumstances.  I refer to R v Searle [1971] Crim. L. R. 592, R v Cossey (1990) 6 CRNZ 185 and R v Bryden HC AK, T 44/87, 8 May 1987 per Barker J.

[38]     Although the circumstances of this case are sufficient to raise suspicion, and while I am mindful of the respective functions of Judge and jury, in my judgment there is insufficient evidence available to the Crown on which a properly directed jury would reasonably convict either Mr L   or Mr L   or both of them.  The Crown cannot prove beyond reasonable doubt that either or both were in possession of the methamphetamine found in the yellow engine de-greaser canister as a matter of law.  Any conviction or convictions would be unsafe and would not be supported by the evidence.  There is no proper basis on which the trial can continue and as a result, both Mr L   and Mr L   are discharged under s 347(3).

Wylie J