R v McGuire HC Hamilton CRI 2006-019-617
[2007] NZHC 1916
•25 June 2007
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-019-617
QUEEN
v
ROBERT WILLIAM MCGUIRE, TANE KYLE DOUGLAS GIBBONS, KAIYA IAN GENE GIBBONS, TRISTRAM JARRED TAKE AND NICOL JOY STEPHENS
Hearing: 25 June 2007
(Heard at Hamilton)
Appearances: P Crayton for Crown
R Laybourn for R McGuire
M Robb for T Taka
Judgment: 25 June 2007
ORAL JUDGMENT OF ASHER J
Solicitors:
Almao Douch, PO Box 19173 Hamilton
R Laybourn, Barrister, PO Box 936 HamiltonM Robb, Barrister, PO Box 58 Hamilton
R V MCGUIRE & ORS HC HAM CRI 2006-019-617 25 June 2007
Introduction
[1] At the conclusion of the Crown case in this trial two of the five accused, Robert McGuire and Tristram Taka, applied through their counsel under s 347 of the Crimes Act 1961 to be discharged on the four counts that they each face. Those four counts are as follows:
a) Manufacturing methamphetamine.
b) Possession of equipment for manufacturing methamphetamine. c) Possession of material for manufacturing methamphetamine.
d)Possession of a precursor substance with the intention of manufacturing methamphetamine.
[2] On Friday 22 June 2007 there was only limited time in which to hear the application. Mr Robb, for Mr Taka, presented a written submission. This morning before the trial recommenced I have received a further written submission from Mr Robb, and full written submissions from Mr Laybourn for Mr McGuire.
[3] The test to be applied for a s 347 application is that set out in Parris v
Attorney General [2004] 1 NZLR 519 (CA) at 523 at [13]:
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.
[4] These charges arise out of a Police search of a property at 83 Alderson Road Hamilton. The search warrant was issued for a purpose unrelated to drugs. However, on arrival the Police found in the house and attached sleepout and garage equipment and materials that, it is the Police case, showed that all stages of a methamphetamine manufacturing process that had been carried out on the property. Further, it is the Crown case that at the time of the Police arrival manufacturing was
actually taking place in the kitchen. The Police arrested the three persons who had been living at the address and they are the three accused that have not applied under s 347.
[5] There is no evidence that Mr McGuire or Mr Taka were resident at
83 Alderson Road. However, at different stages shortly after the Police arrival they were both seen to run from the house. Mr Taka was arrested later in the day and Mr McGuire, who slipped when he was running away, was caught at the time. It is the case for both Mr McGuire and Mr Taka that there is insufficient evidence upon which a properly directed jury could reasonably convict on any of the charges against them.
[6] The Crown, and to an extent Mr Robb for Mr Taka, emphasise that there are differences between the two applications and the matters that can be relied on and referred to. I will consider both applications separately as undoubtedly different considerations relate to each. However, common to both is the submission made by both Mr Laybourn and Mr Robb that there is insufficient evidence upon which a reasonable jury could conclude that manufacturing was actually taking place at the time the Police arrived. This is an important point in relation to both applications as there is no evidence that either Mr McGuire or Mr Taka’s presence in the house was more than temporary.
Evidence of manufacturing at the time
[7] It is not appropriate in a s 347 application, or indeed possible given the time constraints, to exhaustively analyse the evidence. It is, however, necessary to refer to some of the evidence as to what was found when the Police arrived at approximately 11:00 am on 25 January 2007.
[8] In summarising some of the items found in the kitchen and laundry I acknowledge that the evidence of the Police officers was not all entirely consistent as to what they saw. While differences may be matters for counsel to point out to the jury, I attempt to summarise them in this judgment from the perspective of there
being some evidence at least capable of being relied on by the jury that these items were present:
A squashed 1.5 litre plastic bottle found neck down in the sink, its contents partly drained;
A round glass casserole dish lid containing a wet residue and a razor blade;
A plastic bottle containing Toluene;
A one litre metal tin containing Acetone;
A scanner that was on the same frequency as that of the Hamilton Police;
A hairdryer;
A pipe used for inhaling methamphetamine;
A stained coffee filter containing a further coffee filter;
A white plastic funnel;
A 50 ml plastic measuring cup;
A digital pocket scale;
Two bottles of Acetone;
Stained coffee filters containing a brown powder;
Silver balloons containing yellow staining; and
Blue tape.
[9] The majority of these items were in clear view to anyone in the house. Without going into the detail of the Police evidence, the ESR scientist, Melanie Snow, explained that Toluene was used to assist the process of the extraction of methamphetamine from a methamphetamine base. It is the Crown’s case that the squashed plastic container in the sink contained a methamphetamine base to which Toluene had been added. It is the Crown case that at the time of the Police arrival Toluene was being used to extract methamphetamine as part of a methamphetamine manufacturing process.
[10] It is also part of the Crown case that the glass casserole dish lid that contained the liquid and the razor blade was being used to extract methamphetamine. The razor blade can be seen as part of that extraction process. The Crown also refers to the fact that one of the elements on the stove was on and emphasises the presence of the hairdryer. It will be put to the jury that this was part of the process of drying the liquid containing methamphetamine, so that methamphetamine powder or crystals could be obtained.
[11] I have summarised this evidence from the Crown’s perspective. I am conscious that there are a number of points that the defence make in relation to this evidence. In particular, they point to the fact that the Crown did not adduce evidence of any experts saying that methamphetamine manufacturing was actually taking place at approximately 11:00 am on that day.
[12] I accept that this and indeed a number of other points may well be able to be made to the jury. However, I consider, based on the evidence of what was found in the kitchen, that there is sufficient evidence upon which a properly directed jury could reasonably conclude that methamphetamine manufacturing was taking place at the time of the Police arrival. The fact that the scanner was on and that at least Mr McGuire sought to run away gives some immediacy to the situation.
[13] I should mention two other matters. First, it is suggested that no Police Officer immediately concluded when they walked into the kitchen that there was methamphetamine manufacturing in progress. None of the Police officers were cross-examined on this and in any event it will be a matter for the jury who will have photographs of the scene to make a decision on how it would have appeared to a person on entry.
[14] The second related matter is that defence counsel submit that the strong chemical odours associated with methamphetamine manufacturing were not present. However, one of the officers did refer to the chemical smell, and I note that the front door and some of the windows in the house were open and that there does not appear to have been anything actually cooking at the time of the Police arrival. Again, what is made of the odours that were noticed is a matter that can be left to the jury.
Mr McGuire
[15] I now turn to the specific evidence relating to the case against Mr McGuire. In considering his position and that of Mr Taka I assume that there is sufficient evidence for a jury to conclude that methamphetamine manufacturing was taking place.
[16] There is no evidence that Mr McGuire was a resident at the property. He was described as being of no fixed abode, but I accept Mr Laybourn’s submission that it would be speculation to assume any residence in the preceding days or even the night before. The only particular evidence of his presence is that shortly after the Police arrived, not having seen Mr McGuire, there was the sound of smashing glass and he was observed running down the side of the house. He was chased. When he saw another officer who had run out in front of him he tried to change direction, slipped and was caught. When asked by the Police where he had been when the Police arrived he stated “Can’t answer that question”.
[17] Mr McGuire was also observed to have a fresh looking burn on his chest, which he said he got from a methamphetamine pipe that had fallen on him after he had been smoking it and had gone to sleep. The officer also noted other burn marks on his forearms. He acknowledged smoking methamphetamine two nights previously. He was emotional, at some stages crying and other times being confident. He seemed fidgety and his eyes were darting around. He was unable to sit in one spot for long and looked very tired, haggard and unkept. The officer concluded that he was under the influence of methamphetamine and this conclusion was confirmed in cross-examination by counsel, where the officer was asked to confirm that Mr McGuire appeared to be a methamphetamine addict. Mr McGuire did, however, firmly deny any involvement in the manufacture of methamphetamine generally or at the house.
[18] There was no evidence as to where Mr McGuire had been earlier in the morning or indeed at other times before the Police arrival. I consider that a reasonable jury could properly conclude that the following matters indicated that Mr McGuire was manufacturing methamphetamine or aiding, abetting or inciting,
counselling or procuring others to do so; or, alternatively, that he was part of a joint enterprise to manufacture methamphetamine.
[19] These matters are as follows:
a) As I have already concluded, there was evidence that can be put to the jury that a manufacturing process was taking place at around
11:00 am at the address.
b) It could be inferred that from the smashing sound and his sudden appearance running around the side of the house and away from it, that Mr McGuire was present at the time of the Police arrival.
c) It could be inferred that anyone who entered the house and spent any time there and had some interest and knowledge of methamphetamine, would have realised that a methamphetamine manufacturing process was taking place. I have already set out what could be seen in the kitchen and laundry. It is necessary to pass through the kitchen when entering from the main front door, through the open plan lounge and kitchen area and then down the hall to the three bedrooms. The back entrance is through the laundry, passing the washing machine with the items on it, and then moving up to the hall where there is a view to the left of what is in the kitchen, which again must be passed through to go into the lounge area. If, on the other hand, a person arriving goes right down towards the bedrooms, that person would have at least passed the laundry and had a view of what was in the kitchen.
d)It can be inferred that Mr McGuire was in one of the bedrooms as he had not been seen by the Police who were in the lounge and kitchen area before he sought to run away. He appears to have broken glass to get away, which indicates a measure of urgency and desperation, and he ran, it would seem, as fast as he could and indeed may have got away had it not been for the fortuitous arrival of the other officer
causing him to change direction and slip. The inference that the jury could infer from this is that Mr McGuire was aware of the methamphetamine manufacturing process and had a guilty mind in respect of it. It could be seen as an action from which involvement in manufacturing methamphetamine could be inferred. It is to be noted that Mr McGuire did not have any methamphetamine on him. He had no obvious reason to run away from the Police and a jury might infer that the reason was that he was involved in manufacturing methamphetamine in the house. They might, of course, not be prepared to make this inference, but it is a matter that could be seen as indicating a guilty mind.
e) Mr McGuire was in fact a methamphetamine user and he was under the influence of methamphetamine. These last two matters, as was observed in R v Maihi & Ors CA406/04 & Ors 30 November 2005 at [42], are weak evidence on their own in relation to involvement in manufacturing. However they could, in the balance, be taken into account by the jury.
f) The presence of burns on Mr McGuire, at least one of which was fresh, is consistent with him having been involved in processes which use heat. While there is no direct evidence that heat was being applied to any item at the time the Police arrived, a stove element was on. Some strong chemicals were also present.
[20] When all these matters are considered in the round there is, in my view, sufficient evidence on which a properly directed jury could reasonably convict Mr McGuire of manufacturing methamphetamine.
[21] It follows that there is also a sufficient basis for a jury to convict on the charges relating to possession of precursor equipment and materials and the fifth count of possession of precursor substances. There was evidence of the presence of all these items in the kitchen and the jury could infer a sufficient degree of control on Mr McGuire’s part, given the matters I have already mentioned, to find him guilty.
Mr Taka
[22] Mr Taka, shortly before Mr McGuire sought to run away, was observed climbing out of the window in bedroom 2 and running away. He was arrested later in the day. When spoken to by the Police he acknowledged his presence at the address and said it had been for “about half an hour tops”. He explained that he ran away from the address when the Police arrived because there was a warrant for his arrest. It was confirmed by the Police in evidence that there was at the time he ran away in fact a warrant for his arrest on an unrelated matter. There was evidence that earlier in the morning he had not been at 83 Alderson Road. He had gone to the place of a friend of Mr McGuire to inquire about where Mr McGuire was at about
9:00 am. There is some evidence that a silver car found at the address had been driven there by him. The evidence is not particularly conclusive on this.
[23] The case against Mr Taka is weaker than that against Mr McGuire. I do not consider that any adverse inference can be drawn from the fact that Mr Taka was looking to find a friend, Mr McGuire, earlier that day. Indeed, that event indicates that it was somewhat coincidental that he ended up at this particular address. It was also clear that the time that he was at the address was limited. It is consistent with the Police evidence, that at the longest he was there for half an hour, given his movements earlier in the day. There is no evidence that Mr Taka is a methamphetamine user or a methamphetamine addict, or indeed has any connection with methamphetamine, save for the inference that could be possibly drawn from finding a methamphetamine pipe and other consumption paraphernalia in the silver station wagon.
[24] In contrast to the position of Mr McGuire, there is on these charges a credible and innocent explanation for his flight, namely that he knew he would be arrested immediately if the Police found him. Further, unlike Mr McGuire, there were no burns or other indicia on his body of involvement in a process that could have been manufacturing methamphetamine.
[25] In the end, the case against Mr Taka turns on three things. First, that he was there at around 11:00 am. Secondly, that there was manufacturing
methamphetamine going on in the house at that time. Thirdly, that it could be seen by anyone looking in the kitchen who was familiar with the process of manufacturing methamphetamine that methamphetamine was being manufactured.
[26] All counsel have referred to the case R v Maihi & Orsalready mentioned. In that case it was concluded that in relation to some of the accused in that trial, the jury verdicts of guilty should be quashed as unsafe. It was found that in respect of some of the accused the jury could not reasonably infer that they were involved in manufacturing. There were some similarities between that case and the present in that various persons, some of whom were occupants and some of whom were not, were found in a house searched by the Police. In the house there was equipment and materials indicating that methamphetamine manufacture had taken place. However, the case is different from the present in that although there was evidence indicating that the methamphetamine manufacture had been recent, there was no evidence, unlike this case, of actual methamphetamine manufacture at the time that the Police arrived. Two of the accused who were not occupants had their convictions quashed, and the Court emphasised that being a passive bystander or onlooker is not sufficient to sustain a conviction.
[27] While I have found that there are sufficient matters that a jury could rely on to conclude that Mr McGuire was more than a passive onlooker, I do not consider that that is the case in relation to Mr Taka. The evidence that the Crown has adduced creates no more than suspicion. On that evidence it is entirely possible that Mr Taka was at most an innocent onlooker or bystander not involved in the process in any positive way. I do not consider that there is sufficient evidence on which a properly directed jury could reasonably convict Mr Taka. I consider that such a conviction would not be supported by the evidence that is available. I therefore propose to discharge Mr Taka on all counts under s 347 of the Crimes Act 1961.
Result
[28] I do not uphold the application of Mr McGuire under s 347 of the Crimes
Act 1961 and that application is dismissed.
[29] I uphold Mr Taka’s application under s 347 of the Crimes Act 1961 and he is discharged on all counts.
……………………………….
Asher J
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