R v Maarzola CA161/05
[2005] NZCA 363
•14 September 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA161/05
THE QUEEN
v
RAYMOND GARY MARZOLA
Hearing: 31 August 2005
Court: Anderson P, Randerson and Williams JJ Counsel: Appellant in person
M A Woolford for Crown
Judgment: 14 September 2005
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
REASONS
(Given by Randerson J)
Introduction
[1] On 13 April 2005, the appellant was convicted after a jury trial in the
High Court at Dunedin on one count of attempting to manufacture methamphetamine between 29 July 2004 and 15 August 2004. Chisholm J, who had presided at the
R V MARZOLA CA CA161/05 14 September 2005
trial, sentenced the appellant to two years imprisonment on 20 April 2005. The appellant was charged as a party with Aaron Neville Warden and his partner Laurie Ludlow at whose address the attempted manufacturing allegedly occurred. Both Mr Warden and Ms Ludlow pleaded guilty to the charge.
[2] There is no appeal against sentence but Mr Marzola has appealed against conviction on two principal grounds. First, he submitted that the Judge erred in responding to a jury question about the presence of fingerprints on certain items seized from the co-offenders’ address. Secondly, the appellant submitted that the officer in charge of the case misled the jury about the address of the appellant’s former girlfriend in Christchurch and about the appellant’s whereabouts after the crime allegedly occurred. The appellant submitted that these grounds had, in combination, led to a miscarriage of justice.
Evidence at trial
[3] The Crown case relied principally upon conversations recorded at the subject address during audio surveillance over the period 30 July 2004 to 15 August 2004. The Crown case was that these conversations along with various items of equipment and chemicals seized from the address clearly demonstrated that an attempt to manufacture methamphetamine had been made during the relevant period and, in particular, on 12 August. Pseudoephedrine is used in the manufacture of methamphetamine. The Crown called ESR evidence to the effect that all of the chemicals required for the extraction of pseudoephedrine from pharmaceutical preparations were present and that pseudoephedrine had been extracted from these preparations.
[4] Chemicals identified at the premises included toluene and hydrochloric acid, both substances commonly used in the preparation of methamphetamine. The items of equipment included a distillation unit capable of being used to purify methamphetamine from a reaction mixture.
[5] The appellant gave evidence in his own defence. He and Mr Warden were good friends. He admitted staying with Mr Warden and Ms Ludlow at their address
during the relevant period. He knew Mr Warden was learning how to make P (methamphetamine in its pure form). In particular, he knew Mr Warden had paid a “cook” in Christchurch to teach him. Mr Warden showed him his laboratory but the appellant maintained he did not see any of the chemicals Mr Warden used and denied helping him in the laboratory. The appellant suggested at one point that the distillation apparatus was for home brewing purposes.
[6] The appellant accepted he was present on 12 August and gave evidence that Mr Warden had crushed up some pills and mixed them with certain liquids. However, Mr Warden realised something had gone wrong and the two of them travelled to Christchurch that evening. Mr Warden was going to see his cook but he, the appellant, was travelling to Christchurch for the purpose of visiting a former girlfriend. Mr Warden dropped him off at his girlfriend’s address and he later travelled to Blenheim. Some time later he learned of Mr Warden’s arrest and about ten days after that he was arrested himself.
[7] In cross-examination, the appellant accepted Mr Warden had been attempting to manufacture P on the evening of 12 August. He agreed he had told the detective when interviewed that he had been present when Mr Warden “put all these ingredients together”. The appellant stated he saw some of what was going on but said he was coming and going from the room where Mr Warden was. The appellant was cross-examined extensively on words attributed to him from the recorded conversations. In summary, he accepted he was present but denied assisting or encouraging Mr Warden.
[8] Mr Warden was also called in the appellant’s defence. He described himself as being “hooked on P”. He admitted attempting to manufacture methamphetamine on 12 August when the appellant was present. However, he was only able to complete the first of a two-stage process. He described the first stage as extracting the pseudoephedrine from pills which had been crushed with a pestle and mortar. However, he said he had the recipe wrong and he did not have the chemicals to do the second half of the process. It was for that reason he decided to travel to Christchurch to see the cook. Although the appellant was with him, he dropped the appellant off before visiting the cook. The appellant had not assisted him at all in
extracting ephedrine or pseudoephedrine from the pills. Mr Warden was cross-examined on the basis of the recorded conversations. While not disputing what was said, he continued to deny that the appellant had assisted him in the attempted manufacturing.
[9] We have reviewed the transcript of the recorded conversations ourselves. We are satisfied there was ample evidence upon which a jury could find the appellant guilty as a party to the attempted manufacture through aiding and abetting Mr Warden. The transcript includes discussions in which the appellant makes a suggestion as to where Mr Warden could obtain hydrochloric acid; discussions about water levels and steam coming out; the appellant proposing that a tea towel should be wrapped around to prevent the escape of the steam; the appellant suggesting clamps should be utilised; advice from the appellant as to what to do if the police came (set fire to the kitchen and tell the police they were making home brew); more advice from the appellant about the boiling process with the still; the appellant asking Mr Warden whether he should chuck some objects in the fire; the appellant responding to Mr Warden’s request to “put the water in the pills” by saying “hey good colour. Ready to drink”; discussions about putting in tolulene, water and caustic soda; encouragement from the appellant to Mr Warden (“you are on the right track”); and questions from the appellant as to whether more water was needed.
First ground of appeal – the jury question
[10] During the course of evidence, the jury asked a question about fingerprints. The jury noted they had been told that the appellant’s fingerprints were not found on any of the apparatus. Their question was whether the fingerprints of Mr Warden or Ms Ludlow were found on the apparatus. The Judge answered the question in the following terms:
The answer is this, members of the jury. Counsel for the Crown and counsel for the defence present the evidence that they wish to adduce and it is for you to judge the guilt or innocence of the accused on the basis of the evidence actually presented. There is no evidence about the fingerprints of Aaron Warden and Laurie Ludlow. You are not entitled to speculate on that issue. In other words, it is, members of the jury, as far as you are concerned, a non-issue because there is absolutely no evidence about it. I trust that that answers your inquiry.
[11] During the course of his oral submissions, the appellant accepted it was not realistic to expect the Judge to have directed that fingerprint evidence be given which was not before the Court. The appellant was right to make that concession. There being no evidence before the Court as to whether the fingerprints of the co-offenders were found on the apparatus, it was not part of the judicial function to direct that evidence on that subject be adduced.
[12] We add that the identification of fingerprints of the co-offenders on the apparatus would not have assisted the defence case since the co-offenders accepted by their pleas that they had both been involved in the attempted manufacture. The Crown did not allege the appellant had physically assisted with the attempted manufacture. Rather, the Crown case was put on the basis that the appellant was a party through aiding and abetting the co-offenders with knowledge they were attempting to manufacture methamphetamine. This ground of appeal must fail.
Second ground of appeal – misleading evidence by the officer in charge
[13] A minor part of the Crown case was the allegation the appellant had gone to Christchurch on the evening of 12 August with Mr Warden to visit the cook for further advice about the manufacturing process. When the officer in charge (Detective Checketts) was cross-examined it was put to him on the appellant’s behalf that he had told the police when interviewed that the purpose of his trip was to visit his girlfriend Charlotte. The detective was asked whether enquiries had been made to establish if that was the purpose of the appellant’s visit. The detective responded that enquiries were made at the address given but it was a large block of flats and the police had been unable to confirm which one belonged to Charlotte. The detective accepted he was unable to say that the appellant did not visit Charlotte and that there was no evidence the accused had visited Mr Warden’s cook.
[14] The appellant tendered to us a document we understand to be a police record of a text message on 12 August 2004 which he said showed Charlotte had given him her address in Christchurch. The appellant’s submission was that the address must have been known to the police and he submitted the detective had lied when saying the police did not have Charlotte’s address. Leaving aside for the moment the
evidential difficulties facing the appellant in attempting to introduce this material on appeal, we are unable to see how the detective’s response to the questions put to him at trial could have materially affected the jury. The detective accepted there was no evidence the appellant visited the cook with Mr Warden so it did not matter whether the appellant’s evidence that he visited Charlotte in Christchurch was confirmed or not.
[15] The appellant also submitted that Detective Checketts had misled the jury by suggesting the appellant could not be found for a period after the audio surveillance finished on 15 August 2004. He was not spoken to until 20 September in Blenheim. In cross-examination the detective said the appellant was a person of interest as soon as he visited the home of the co-offenders. The appellant submitted that telling the jury the police were unable to find him made him appear a wanted criminal.
[16] The appellant submitted that the police did know where to find him and pointed to his evidence at trial that he had been stopped by the police on several occasions in the intervening period but had not been arrested. He also produced to us a newspaper report which referred to the dismissal of a charge of arson against him at Blenheim which, he said, also showed the police knew where he was. The appellant referred to evidence from Detective Checketts that the appellant had not been flagged in the computer system (indicating that the police did not regard him as a person of interest). The prejudicial effect of suggesting he was trying to hide from the police was, the appellant submitted, exacerbated during re-examination when the detective suggested he, the appellant, was being hidden by the Southern Vikings gang.
[17] Again, we have difficulty in accepting the proposition that this evidence, even if misleading to a degree, could have led to any risk of a miscarriage of justice. It was, at best, a peripheral issue which was unlikely to have had any material effect on the jury given the strength of the Crown case. Viewed overall, the case against the appellant was very strong and we are not persuaded there was any risk of a miscarriage of justice on any of the grounds advanced by the appellant.
Result
[18] For the reasons given, the appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington
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