R v M HC Hamilton To21284

[2002] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY   TO21284

ORDER FORBIDDING PUBLICATION [SEE: PARA [18] OF JUDGMENT]

THE QUEEN

v

M

Hearing:                   2 October 2002

Counsel:

Mr P G Mabey QC for Accused

Mr P P Crayton for Crown

Judgment:                4 October 2002

JUDGMENT OF HEATH J

_____________________________________________________________________

Solicitors:
Mr S J Young, Young & Associates, PO Box 1476, Hamilton, Fax: [phone]

Mr P P Crayton, Almao Kellaway, PO Box 19173, Hamilton, Fax: [phone]

Counsel: Mr P G Mabey QC, PO Box 13199, Tauranga, Fax: [phone]

Introduction

[1] This is an application under s 347 of the Crimes Act 1961 which seeks an order discharging Ms M prior to trial on Counts 7 and 13 of the indictment presented by the Crown Solicitor at Hamilton. Ms M was committed for trial in this Court on 1 July 2002 by a Community Magistrate after a preliminary hearing.

[2] The two counts which Ms M faces allege:

[a] first, that on 15 January 2002 she supplied a Class B controlled drug, methamphetamine, to X;

[b] second, that, on 23 Feburary 2002, she supplied a Class B controlled drug, methamphetamine, to X.

[3] In respect of Count 7 she is the sole person charged. In respect of Count 13, she is charged together with her partner, Mr C and her father, Mr R M.

Section 347 Crimes Act 1961: Legal Principles

[4] The principles to be applied by this Court in determining an application under s 347 of the Act were restated recently by the Court of Appeal in R v Flyger [2001] 2 NZLR 721. Where an application is brought under s 347 of the Act based on insufficiency of evidence (as is the case here) the Court of Appeal, per Anderson J, adopted Tompkins J’s formulation of the test in R v Adams (High Court Auckland T240/91, 8 October 1992) where His Honour had said:

“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.” [Tompkins J’s emphasis]

See R v Flyger at 726-727, para [18].

[5] Mr Mabey QC and Mr Crayton put slightly different emphases on various passages from the judgment of the Court of Appeal in Flyger. While, at various stages of the judgment the Court of Appeal discussed the sufficiency of evidence in the context of the overall safety of a likely verdict (eg at para [15] at 725-726) and adopted the principles applicable when a submission is made in a summary jurisdiction of “no case to answer” formulated in R v Galbraith [1981] 2 ALL ER 1060 (CA) at 1062, I am satisfied that the appropriate test to apply is whether a jury, properly directed, could convict Ms M on the two counts of supplying methamphetamine which has been brought against him. The distinction is a subtle one, but the Court of Appeal has made it clear that that test is preferable to the test formulated by Wilson J in R v Myers [1963] NZLR 321. In that case Wilson J expressed the opinion that this Court could discharge an accused under Section 347(1) of the Crimes Act if satisfied that it was “unlikely that any jury, properly directed, would convict” or “that it would be wrong for a jury to convict”. The Court of Appeal, in Flyger, overruled R v Myers.

The Facts

[6] The evidence on which the Crown relies is contained in the evidence of an undercover police officer known as X. Between 16 July 2001 and 21 March 2002 Detective Constable X was attached to Police National Headquarters in Wellington and was deployed as an undercover agent in the Waikato.

[7] So far as Count 7 is concerned, the evidence given at depositions by Detective Constable X establishes:

“[a] At 1.10 pm on 15 January 2002, Detective Constable X arrived at the home of Mr H in E Street, Hamilton. They left that address and drove into Hamilton City Centre. As they drove into town they engaged in general conversation. Later, that conversation turned to the subject of drugs.

[b] Ultimately the Detective Constable and Mr H went to the home address of Ms M at W Street, Hamilton. Ms M lives at that address together with her partner, Mr C. Mr H went inside and returned a short time later. Mr H told Detective Constable X that there was some pure methamphetamine available and that Ms M would come with them to get it.

[c] The three of them drove to an address in Glenview. At the start of the conversation in the car, Ms M asked whether “this guy” (meaning Detective Constable X) was “all right”. She was reassured by Mr H that he was.

[d] After the vehicle had been parked at the address in Glenview, Mr H got out of the car and went down a driveway. A short time later he arrived back at the car. He handed three snap lock bags to Detective Constable X. The Detective Constable took the bags and inspected the contents of each bag. They contained a white powder consistent with being a “point” each of pure methamphetamine. This is a pure form of methamphetamine which has not been diluted with a cutting agent such as glucose or brewing sugar. It is more valuable than the diluted form, and more potent. The term “point” refers to about 0.1 of a gram - pure methamphetamine is commonly purchased in that quantity.

[e] Money passed hands from Detective Constable X to Mr H in the car. It is unclear from Detective Constable X’s evidence at the preliminary hearing whether Ms M was or was not in the car while this transaction was consummated; I conclude on balance that she probably was not as, after Mr H said he would take one of the “points” and swap it for another, he picked up one of the “points” and got out of the car. He then returned with Ms M and they got into the car. This suggests that she was out of the car and probably in the house at the time that the drugs were made available to Mr H to take out to the Detective Constable.

[f] They then dove back to the W Street address. When they arrived back at the W Street address the Detective Constable turned towards Ms M, who was in the back seat, and said “thanks for that” to which she replied “no problem”. Ms M then got out of the car and went into the address.”

[8] With regard to Count 13, which focuses on a transaction which took place on 23 February 2002, the essence of the Detective Constable’s evidence is as follows:

“[a] At 4.30 pm on 22 February 2002, Detective Constable X went to W Street, Hamilton. He was met by Mr C and Ms M.

[b] Detective Constable X had a conversation with Mr C in the presence, and within the hearing, of Ms M. The essence of the conversation was an inquiry by the Detective Constable as to the whereabouts of Mr R M followed by an inquiry as to whether another gram of methamphetamine was available for purchase.

[c] Mr C indicated that another gram may be available but he did not know where Mr R M was. Mr C suggested that the Detective Constable call back in an hour or so.

[d] While Detective Constable X set up his electronic scales, he spoke to Ms M. The evidence seems to establish that she was in the kitchen at the time that the scales were set up on the bench and was present when Mr R M entered the kitchen later.

[e] Mr R M placed one of the snap lock bags which he had earlier removed on to the scales which had been set up by Detective Constable X. The methamphetamine was weighed. Five bags were weighed in total, each containing an identical looking sugar-like substance consistent with pure methamphetamine.

[f] After choosing a particular bag of methamphetamine, Detective Constable X spoke to Mr R M in the presence, and within the hearing, of Ms M. During the course of that conversation price was discussed; as was the quality of the product. Money then changed hands between Detective Constable X and Mr R M so that the Detective Constable could acquire the drugs.”

Other Legal Issues

[9] There are three additional legal issues which I need to address briefly.

[10] First, the Crown relies upon statements of co-parties as well as direct evidence from Mr C to assist it to establish the charges beyond reasonable doubt. In R v Tauhore (1996) 14 CRNZ 248 at 250 expressed the rationale for this rule in the following terms:

“In Tripodi v R (1961) 104 CLR 1; [1961] ALR 780, this issue came before the High Court of Australia. In its judgment, the court said (at page 7; 782):

“It must be remembered that the basal reason for admitting the evidence of the actual words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.”

We can find no valid reason for distinguishing the case of two or more accused acting together in furtherance of a common design, and being charged with the particular offence, from the case where the charge is one of conspiracy. It is the fact of common design which is critical. The statements made by one in furtherance of that design are thereby admissible against the other or others. The rule cannot logically be confined to cases where the offence charged is one of conspiracy.”

[11] The second issue concerns the ability of a jury to draw inferences from proved facts. It is trite law that where two inferences are open it is necessary for the accused to be given the benefit of the doubt: see R v Puttick (1985) 1 CRNZ 644 (CA) at 647. Thorp J, delivering the judgment of the Court of Appeal in that case, said:

“It must be . . . unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step.”

[12] The third issue concerns the meaning of the term “aiding” in s 66(1)(b) of the Crimes Act 1961. In Larkins v Police [1987] 2 NZLR 282 (CA), the Court of Appeal held that to sustain a conviction for aiding, there must be proof of actual assistance. The court held that the reference to “purpose” in the phrase “for the purpose of aiding” in s 66(1)(b) of the Act, was descriptive of the state of mind of the aider and “superimpose[es]” a requirement in that respect upon the need for proof that the accused did an act which had the effect of aiding.

Conclusions

[13] Mr Mabey QC submits that the evidence is insufficient to prove beyond reasonable doubt that Ms M should be regarded as a person who:

[a] acted as a principal in respect of the 15 January 2002 transaction; and

[b] assisted Mr R M to sell methamphetamine on 23 February 2002.

He submits that the evidence is insufficient for a jury, properly directed, to convict. Mr Crayton emphasises that the evidence must be taken in overall context and relies on statements made by co-parties as discussed in Tauhore.

[14] Having reviewed the evidence:

[a] I am satisfied that the role of Ms M in relation to the 15 January 2002 transaction (Count 7) is such that a jury, properly directed, could conclude that she is guilty of supplying methamphetamine;

[b] I am satisfied that a jury, properly directed, could conclude that she was a party to the supply of methamphetamine on 23 February 2002 (Count 13).

[15] So far as Count 7 is concerned, I regard the fact that the evidence is capable of being viewed as placing her in the house when the methamphetamine is given to Mr H to take out to the Detective Constable as the most influential piece of evidence to support that count.

[16] So far as Count 13 is concerned, I am of the view that the evidence is capable of giving rise to an inference that Ms M assisted her father in this transaction.

[17] Accordingly, the application under s 347 of the Act is dismissed.

[18] I make an order forbidding publication of anything contained in this judgment pending final determination of the trial which is scheduled to commence in the High Court at Hamilton on 21 October 2002. Publication of this decision in a law report or law digest is permitted in the meantime provided the participants are identified only by letters of the alphabet.

[19] I thank counsel for their assistance.