R v M HC Hamilton CRI-2006-019-4227
[2008] NZHC 929
•18 June 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2006-019-4227
THE QUEEN
v
M
ANDR
Hearing: 16-18 June 2008
Appearances: R L Mann for the Crown
R J Laybourn for the Accused M
K W Burroughs for the Accused R
Judgment: 18 June 2008
(ORAL) JUDGMENT OF DUFFY J [Re s 347 Application]
Counsel: R J Laybourn P O Box 936 Hamilton for the Accused M
Solicitors: Almao Douch P O Box 19173 Hamilton for the Crown
K W Burroughs P O Box 19307 Hamilton for the Accused R
R V W And R HC HAM CRI-2006-019-4227 18 June 2008
[1] Mr M and Mr R are on trial on counts of:
i) Manufacturing the class A drug methamphetamine for supply;
ii)Producing a precursor substance, namely pseudoephedrine, knowing that the substance would be used to manufacture methamphetamine;
iii)Possessing the precursor substances acetone, hydrochloric acid, hypophosphorous acid and toluene to manufacture methamphetamine;
iv)Possession of equipment and material to manufacture methamphetamine; and
v) Possession of utensils for consuming methamphetamine.
[2] The trial has reached the stage where the Crown has closed its case. Mr M has applied for a discharge under s 347 of the Crimes Act 1961. He submits that the Crown case discloses no evidence to prove he was in any way involved in the manufacture of methamphetamine or the production of pseudoephedrine. He submits that there is also no evidence to connect him to the items found at the house to establish counts 3, 4 and 5. The Crown opposes the application.
[3] Mr M does not dispute that methamphetamine was manufactured and that pseudoephedrine was produced at the address. Furthermore, there is no dispute that the precursor substances referred to in count 3 were on the property or that the equipment in count 4 and the items in count 5 were on the property. What Mr M challenges is the sufficiency of the evidence to link him to those counts.
[4] The essential facts on which the Crown relies are that at approximately
7.50 am on 7 June 2006 the Police visited an address at Hamilton for the purpose of executing a search warrant. Sergeant Newland knocked on the door and announced it was the Police. He heard more than one male voice calling out; one of the male
voices called out “it’s the cops”. The Sergeant also heard footsteps running through the house. Approximately 40 seconds later the door was opened by Mr R and the Sergeant entered the house accompanied by Senior Constable Doak. Inside the house there was a strong noxious chemical smell and a cloudy, hazy, smoky atmosphere. The atmosphere was so bad that shortly after entering the house an emergency was declared under the Hazardous Substances and New Organisms Act
1996 and all persons vacated the property. Evidence was found of the house being used as a clandestine laboratory for the production of pseudoephedrine and the manufacture of methamphetamine. Pseudoephedrine and methamphetamine were found as well as equipment to make those products and the precursor substances necessary for their manufacture. In addition, utensils for the consumption of methamphetamine were also found at the house.
[5] When the Police entered the house Mr M was found in the living room seated on a couch. The Police Officers who saw him that day have all described him in terms of being unshaven and dirty and dishevelled. Mr M said he had only arrived at the house 10 minutes earlier. He also said that he had been staying at the house in the last little while but his address was of no fixed abode. The tenant of the house is Mr R , who has lived there for approximately five years.
[6] Mr M refers to the well-known tests in R v Flyger [2001] 2 NZLR 721 and R v Parris [2004] 1 NZLR 519 for a discharge under s 347 and submits that the Crown case is so weak that no properly directed jury could reasonably convict. Mr M submits that all that the Crown can establish is that he was present at the property at the time when the Police arrived. Whilst there is evidence of noise, movement within the house and male voices, he submits there has been no evidence to identify his voice as the one calling out “it’s the cops” and there is no evidence as to what the other male voice was heard saying.
[7] Mr M also points to the fact that he was found in the living room which was an area in the house where nothing of any evidential note was found. He submits that when the evidence is looked at overall, there is nothing from which a properly directed jury can infer that he was anything other than someone who was
present in the house. In this regard he compares his presence with that of a female, Toni Richards, whom the Police also found at the house.
[8] Mr M submits that there is no evidence to link him to counts 1 and 2, and it follows from this that there is insufficient evidence to link him with counts 3 and 4 or anything to prove count 5. In relation to these three latter counts, it is submitted that he has no link with any of the items; his fingerprints were not found on the items. He submits that the Crown case against him, at best, is one of suspicion and speculation, which is an insufficient basis upon which to found a conviction.
[9] There was no dispute that mere presence at the scene of a crime as a passive spectator is not sufficient to establish liability as a party under s 66(1) of the Crimes Act: see R v Schriek [1996] 14 CRNZ 449. If the Crown’s evidence cannot prove that Mr M was anything other than merely present at the house at the time the Police search occurred, the application should be granted.
[10] However, the Crown submits that the evidence establishes more than that Mr M was simply present as a spectator. Accordingly, the Crown submits that there is sufficient evidence for the counts Mr M faces to be determined by a jury. The evidence the Crown relies on to prove that Mr M was more than merely present at the house on 7 June 2006 is the evidence of what the Police Officers heard, experienced and saw when they arrived at the house on that day. This was:
a) Hearing more than one male voice calling out when they knocked on the door;
b)Hearing running footsteps in the house which seemed to be moving to the rear of the house;
c) Hearing some liquid being poured down an outlet inside the house that led to an outside drain;
d) Hearing cupboard doors slamming;
e) The overall impression the Police gained of there being a commotion within the house when the occupants heard the Police knocking on the door;
f) Experiencing strong chemical smells that stung the eyes and lips;
g) Seeing a cloudy smoky atmosphere in the house that made the house hazy when the Police entered.
The Crown submits that when the jury has regard to all these circumstances, coupled with the fact that methamphetamine and pseudoephedrine were found at the house with precursor substances and all the necessary equipment, the only available inference possible for the jury to infer is that Mr M and Mr R were engaged in the process of manufacturing methamphetamine and were caught red- handed by the Police.
[11] The principles upon which the discretion under s 347 should be exercised are set out by the Court of Appeal in R v Flyger at [13] to [15]:
[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.
…
[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. (emphasis added)
[12] R v Flyger was “explained” in the subsequent Court of Appeal decision in Parris v Attorney General. Parris makes it clear that 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: Parris v Attorney General at [14]. Questions of credibility and weight must in “all but the most unusual or extreme circumstances” be decided by the jury: Parris v Attorney General:
[10] … If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds. …
…
[13] … There should be a s347 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. …
[13] At the same time the importance of an accused’s person right to seek a discharge under s 347 was recognised by Baragwanath J in R v Lua HC AK CRI
2006-92-436 24 April 2007 at [3]-[4]:
[3] … But where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury could not properly convict upon it, it is his duty to stop the case.
[4] … The jurisdiction is rather one of added constitutional protection: that no-one should be exposed to risk of verdict when the evidence is so slender that a conviction would be unsafe. The accused is entitled to a decision not only from a jury but, in advance of that, from the judge.
[14] It was stated in R v Bromby HC DUN T05/5334 10 August 2006
John Hansen J that when deciding a s 347 application a Court should:
… guard against a tendency to determine issues on what the Judge may regard as reasonable, rather than whether or not the Jury could reasonably come to a conclusion of guilt. For the purpose of the argument, the evidence must give the construction most favourable to the Crown, and unless a case is clear cut in favour of an accused it should be left to a Jury to determine.
[15] The question of the credibility of Mr M ’s statement to the Police that he arrived at the house 10 minutes before them is an example of the type of issue that should be left to the jury to decide whether or not to believe.
[16] The test under s 347 is a high one. It is not what a reasonable jury properly directed would do but rather what a reasonable jury properly directed could do. I have to decide whether the evidence is such that no reasonable jury properly directed could draw an inference of guilt from all the evidence.
[17] It seems to me that, as the evidence stands, a reasonable inference that could be drawn from the evidence is that Mr M was a participant in the general commotion that occurred when the Police arrived at the house. Whilst there is nothing to identify his voice as the one calling out “it’s the cops”, the evidence was that there was more than one voice calling out. It is true that Ms Richards was present in the house as well, however, the short space of time at which the Police were outside the door and the general commotion they have described hearing may well be consistent with all three persons participating in the commotion. The fact that Ms Richards was not charged does not necessarily exclude her from any involvement. Nor does it prevent the jury from inferring that all three persons participated in the commotion.
[18] The submissions of Mr M leave me unconvinced that this is a case where I can properly find that no reasonable jury properly directed could convict him. I accept the Crown case may not strong. I also accept that a reasonable inference to draw from the evidence is that Mr M was only present as a spectator to what occurred. But that is not the only reasonable inference available to the jury. This is not a case where there is no evidence upon which an inference adverse to the accused could be drawn. Here there is a situation where Mr M was present in a closed up house that smelt of noxious, caustic, chemical fumes and had a cloudy, smoky atmosphere. The Police immediately declared the scene to be hazardous and ordered everyone out of the house. Some Police personnel entered using breathing apparatus. A jury might well conclude that no mere spectator would choose to be present in such an environment. The only reason for staying in the environment, the jury may conclude, was to participate in the manufacture of methamphetamine and pseudoephedrine.
[19] In the house were all the necessary ingredients and equipment to produce pseudoephedrine and to manufacture methamphetamine. On analysis those products were found to be present in the house or on items in the house. Mr M was one of two males in the house and the Police heard more than one male voice and a commotion when they arrived at the house and knocked on the door. On the strength of this evidence, I consider it is open to a reasonable jury properly directed to infer that Mr M was someone involved in the production of pseudoephedrine and the manufacture of methamphetamine whom the Police had caught in the act of manufacture. I do not think the presence of Toni Richards in the house can detract from the jury’s ability to draw these inferences. The facts in this case are somewhat analogous to those in R v Robertson HC WN CRI-2005-085-3489 9 May 2006. In that case, Gendall J referred to the fact that invariably manufacturing of methamphetamine charges are based on circumstantial evidence.
[20] It follows that I consider there is sufficient evidence on which a properly directed jury could draw inferences that established Mr M ’s guilt in respect of counts 1 and 2 and, accordingly, his application on counts 1 and 2 is dismissed.
[21] I also consider that a reasonable inference to be drawn from participation in the production of pseudoephedrine and the manufacturing of methamphetamine is that the participants have possession of the precursor substances and the equipment used to carry out the manufacture and production of the two controlled drugs. I cannot, therefore, on the basis of the evidence that is before me, conclude that no reasonable jury could draw the inference that the evidence established Mr M ’s guilt in respect of counts 3 and 4. It follows that his application in respect of those counts is also dismissed.
[22] This leaves count 5. The items that the Crown relies on to prove count 5 (glass pipes and gas torch) were found in bedroom 2. There was part of a glass pipe and a gas torch found in bedroom 2, and a bag containing glass tubes used to form part of a P pipe was also found in bedroom 2. The evidence is that this is the only habitable bedroom in the house and the tenant is Mr R . The evidence strongly suggests that bedroom 2 is the bedroom of Mr R . The evidence establishes that when Mr M stayed at the house, he slept on a couch in the living room. There is no evidence to suggest that Mr M had access to Mr R ’ bedroom. I consider that there is no evidence whatsoever to connect Mr M to the gas torch and glass pipes found in bedroom 2 and, accordingly, it is proper that he be discharged under s 347 on count 5.
Duffy J
0
0
0