R v Pulman HC Auckland CRI 2007-057-2376

[2009] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-057-002376

REGINA

v

SAMUEL ROSS PULMAN

Hearing:         8 October 2009

Appearances: Bruce Northwood with Robin McCoubrey for Crown

Steve Cullen for Accused

Judgment:      30 October 2009 at 4:00pm

JUDGMENT OF HUGH WILLIAMS J

This judgment was delivered by The Hon. Justice Hugh Williams on

30 October 2009 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

Mr Pulman’s application for leave to withdraw his guilty plea is dismissed.  He is remanded on bail to a criminal callover in the Auckland High Court on 11 November 2009 at 9:00am for the setting of a date for sentence.

REGINA V PULMAN HC AK CRI-2007-057-002376  30 October 2009

Introduction

[1]      Up until 18 May 2009, the applicant, Mr Pulman, was charged both alone and jointly with a Messrs Wikitera and Hanif with a raft of charges under the Misuse of Drugs Act 1975.    In varying combinations, the three were charged with manufacturing   methamphetamine   between   1   January-4   December   2007   plus Mr Pulman was charged with manufacturing methamphetamine with other persons and Messrs Wikitera and Hanif faced other charges of drug offending.   Of importance, Mr Pulman also faced 34 counts of selling pseudoephedrine to various named and unnamed persons between 31 October-4 December 2007.

[2]      However, on 18 May 2009, Mr Pulman pleaded guilty to one representative count that between 1 January 2005-4 December 2007, he manufactured methamphetamine and, it seems, was discharged under s 347 of the Crimes Act 1961 on all other counts, the Crown having offered no evidence in relation to them. An agreed statement of facts was handed to the Court.  (The neutral phrase “it seems” has been employed because it is uncertain from the file whether Potter J did in fact formally enter discharges on all the other counts under s 347 or whether they may have been left extant pending sentencing.)

[3]      Mr Pulman was due to be sentenced on the count to which he pleaded guilty on 7 July 2009 but on 1 July applied for leave to vacate the guilty plea and for a direction that he be “re-arraigned on all the counts” in the indictment.

Application to vacate the guilty plea

[4]      Mr Pulman’s application to vacate his guilty plea was essentially based on two grounds:

a)        That    he    was    only    charged    as    a    party    to    manufacturing methamphetamine and had a clear defence to that charge; and

b)That  he  had  been  incorrectly  advised  by  his  former  counsel  and pleaded guilty under pressure.

[5]      The evidence will be dealt with in that order, after setting out the applicable law.

Law

[6]      There was little difference of view between counsel as to the law to be applied.

[7]      Applications to set aside pleas of guilty are granted if the ends of justice require it (R v Turrall [1968] NZLR 312, 313) and in R v Ripia [1985] 1 NZLR 122,

126, the Court of Appeal added:

(a)       That the accused has not really pleaded guilty, (b) That there has been some mistake, or

(c)       That there was a clear defence to the charge.

[8]      As it was put by the Court of Appeal in Ripia:

In both his judgments Barker J set out what he took to be the principles of law applicable to an application for leave to set aside a plea of guilty and to allow an accused to enter a plea of not guilty in its place. He treated these principles as being similar to those applied by an appellate Court in deciding whether to allow an appeal against conviction after a plea of guilty. He referred to the decision of this Court in R v Stretch [1982] 1 NZLR 225 in which an accused, who had pleaded guilty to a charge of murder and had been sentenced thereon, applied for leave to appeal against his conviction on the ground that he had made a mistake in pleading guilty. In a review of the relevant principles Cooke J, delivering the judgment of the Court, said:

"As to the law, in very exceptional cases, and only in such cases, an appeal against conviction can succeed after a plea of guilty. The authorities were collected in an article by Alec Samuels in [1962] Crim LR 806 (which includes the statement 'a defendant who was represented is virtually precluded from advancing such a contention') and by TA Gresson J in Udy v Police [1964] NZLR 235. More recent English authorities will be found in 11 Halsbury's Laws of England (4th ed) para 611, note 5 and the supplement" (ibid, 229).

There is also the dictum of Avory J delivering the judgment of the Court of

Criminal Appeal in R v Forde [1923] 2 KB 400, 403:

"A plea of Guilty having been recorded, this Court can only entertain an appeal  against  conviction  if  it  appears  (1)  that  the  appellant  did  not appreciate the nature of the charge or did not intend to admit he was guilty of it,  or  (2)  that  upon  the  admitted  facts  he  could  not  in  law  have  been convicted of the offence charged."

The grounds upon which an applicant may advance an appeal against conviction are very limited as the cited authority shows; a change of plea on an appeal will be allowed only in very exceptional cases - Stretch at p 229. But we are here concerned with an earlier stage in the proceedings - the power of the High Court to allow a change of plea before sentence has been imposed in that Court itself. In such a case no question of appeal against conviction arises and the grounds upon which the Court may allow a change of plea are not so restricted. The position is set out in Adams on Criminal Law (2nd ed) para 2838 (a passage which was not brought to the notice of the Judge):

"A plea of guilty given on arraignment may be withdrawn, with permission, at any time before sentence, the granting of such permission being in the discretion of the judge."

Adams gives mistake or misunderstanding or other reasons rendering it desirable that the prisoner should be allowed to join issue with the plea as justification for its withdrawal. In Turrall  [1968]NZLR 312 a change of plea was allowed in the High Court on the broad footing that the ends of justice required it.

[9]      As noted in those authorities, when an  accused has been  represented  by experienced counsel at the time of entering the plea it is difficult for him to discharge the burden to make out grounds for leave to reverse the plea (R v Stretch [1982]

1 NZLR 225, Whatarau v R HC WHA CRI-2007-4888 3 May 2007 at [12]).

[10]     The clearest exposition of the elements of the offence to which Mr Pulman pleaded guilty is to be found in R v Wentworth [1993] 2 NZLR 450 (undisturbed on appeal: Wentworth v R CA10/93 26 May 1993), a case where the accused was a pharmacist who supplied methadone to other accused, first at levels above those authorised for heroin addicts and later, he said, to keep them away from heroin.  The Pharmaceutical Society had warned pharmacists against supplying large quantities of codeine-based medication because of their knowledge – including that of the accused

– that it could be used for manufacturing heroin.  Mr Wentworth was charged as a party to the manufacture of heroin and, on an application for discharge under s 347 of the Crimes Act 1961, Fisher J first held (at 453):

... there are at least four ingredients which the Crown must establish in a case such as this one. The Crown must show:

1.that Wentworth knew that some identified or unidentified person contemplated the manufacture of heroin (I leave to one side degrees of certainty, recklessness, and wilful blindness since knowledge was not denied for the purpose of this application);

2.that he intended to help that person to manufacture heroin in the sense that he knew that much manufacture would be a direct or indirect consequence of his own action;

3.        that with that intention he performed some act; and

4.        that his act in fact assisted the other person to manufacture heroin.

Recognising Mr Pulman was not personally involved in any aspect of manufacturing methamphetamine and thus could only ever have been convicted as a party to the charge to which he pleaded guilty,  Wentworth says (at 456, 458), in a detailed analysis of the differences between purpose, intention, knowledge, foresight and motive:

The key word in s 66(1)(b) is  “purpose”.  An accused is liable only if his own act was done for the “purpose” of aiding the principal to commit the primary crime.  ...

... I do not consider that it would be any answer for the accused to show that he did not wish to see the panadeine tablets converted to heroin if he knew that in fact that was the use to which they would be put.  Foreseen outcomes are not divisible in this context.  On the facts assumed for the purposes of this application, the accused must be taken to have had assistance in the manufacture of heroin as one of his own purposes.  It follows that there is a proper case to go to the jury with respect to all the elements of criminal liability and the application under s 347 must be dismissed.

[11]     Fisher  J  returned  to  the  issue  in  Heta  v  Police  HC  HAM  AP89/02

19 February  2003.    In  dealing  with  a  submission  that  the  appellant,  because frightened, had no intention or purpose of helping or encouraging the principal offence relying on R v Pene (CA63/80 1 July 1980).  The judgment observed:

[7]       ...  On one possible interpretation of that decision, the fact that the accused knows that his active assistance will have the effect of assisting in the commission of a crime may not be sufficient to make him a party; there must be an added mental element before there will be the qualifying purpose of achieving the commission of that crime.

...

[9]       There is no point in my repeating the lengthy matters that I traversed in Wentworth. It is sufficient to note that Pene itself contains the following passage at page 5:

… if it be shown that there was an actual intention to encourage [I think it is accepted that the same applies to assistance] then the reasons which prompted the accused to intentionally encourage the commission of a crime would be irrelevant. We accept that if an accused person conducted himself in a way which he intended the

principal offender to interpret as encouragement then that would be enough to sustain a conviction.

[10]     Once one substitutes the word “intended” for the word “purpose”, which the Court of Appeal has in that context treated as synonymous, there is a basis for invoking the well-established principle that in a legal context intention is normally taken to embrace both ultimate (desired) consequences and incidental (undesired but foreseen) consequences so long as the latter are foreseen with sufficient certainty when the course of action is deliberately embarked upon. In the end a contract killer is after money, not the death of his victim. If an accused knows that a consequence of his action will be to assist the commission of a crime it becomes immaterial that he may not have wanted the crime to occur, and that he may have been motivated by entirely different  considerations  such  as  fear  of  the  consequences  if  he  did  not co-operate. ...

[12]     It remains to add that one of the grounds on which an application will be granted to withdraw a plea of guilty is if the applicant has a “clear defence” to the charge.   With respect, this Court takes the view that Hansen J may have slightly overstated the test in his oral judgment in Otton v R HC AK CRI-2005-092-1612

26 August 1995 [20]. After referring to the “clear defence” criterion, the judgment then proceeded to say that the applicant must be able to point to evidence which provides a “complete answer” to the charge.

Facts

(1)      Clear defence

[13]   The evidence showed that in early October 2007, the Police received information that Mr Pulman – formerly the owner but latterly the employee – at the Unichem Pukekohe pharmacy was supplying large quantities of the methamphetamine precursor pseudoephedrine.

[14]     Observations  were undertaken  from  12  October  2007,  including personal observations by Police and the later installation of covert cameras in the premises from 31 October 2007.

[15]     The agreed summary said that from 1 January 2005 until the Police operation

-  code-named  “Operation  Mordor”  -  was  terminated  on  4  December  2007, Mr Pulman had been opening the pharmacy at 6:15am on weekdays, well in advance

of  the  8:00am  normal  opening  and  contrary  to  instructions  from  the  pharmacy owner.  Pharmacy rules were that no more than one packet or bottle of substances containing pseudoephedrine could be supplied to any one customer and that, unless they were  personally known,  customers  had  to  provide  identification,  details  of which were to be entered into a register.

[16]     Footage  taken  by  cameras  starting  from  6:15am  on  31  October  until

4 December  2007,  showed  Mr  Pulman,  as  the  sole  employee  present,  selling considerable amounts, sometimes up to 15 packages, of pseudoephedrine containing substances to a variety of customers, including Messrs Wikitera and Hanif.   Sales were in cash.  Change was not given.  Sales were effected at prices well above retail. Sales were not passed through the shop till nor were they registered in the controlled drug register.

[17]   When the operation was terminated and Mr Pulman interviewed, he acknowledged knowing that the products sold contained pseudoephedrine.  He said he tried to persuade prospective customers suffering from colds or congestion to purchase non-pseudoephedrine containing products, but readily sold the pseudoephedrine-containing products if requested.

[18]     He said “I don’t like supplying it, its against my will” and he only did it to “get rid of them, the people”, something he had not raised with the managers.  He acknowledged hearing Constable Surrey of the Pukekohe Police speaking to pharmacy staff and Mr Pulman personally on 26 August 2005.  He said:

I asked him the question shall I stop straight away now and he said no, just keep supplying them, its easy for us to track them.

[19]     The interview contained the passage:

Q.       Would you agree that pseudoephedrine is used in the manufacture of methamphetamine?

A.       Yes.

Q.       Obviously those procedures are in place to prevent criminals from manufacturing Methamphetamine.  Would you agree with that?

A.        Yes.

Q.Would anyone  that comes  into  the  pharmacy requesting more  than  one packet of pseudoephedrine-based medicines ring alarm bells with you?

A.       Yes.

Q.       On how many occasions has that happened, between the hours of

6:15 am when you opened and 7:00 am when other staff arrive?

A.       Maybe once or twice a week, it varies. Q. Have you ever alerted the Police to this? A.        No.

Q.       Is there a reason you haven’t? A.  No.

Q.       Would all these sales be recorded in the book? A.  Not all those.

[20]     Later, he said:

Q.       Going back to these people that are coming in and getting the pseudoephedrine, they are obviously buying too much medication for your average cough, cold or flu, what is your interpretation on that?

A.       They must be using it for other reasons. Q. What are those reasons?

A.       You’d have to ask them.

Q.        So you’ve got people buying the pseudoephedrine but you yourself are acknowledging it isn’t for a cold and it is being used for other reasons, you must know what those reasons are?

A.       I take its P I suppose. I don’t know.

Q.        Do you agree with me that these people, and if you like I can show you names, dates, times, amounts of packets – are buying pseudoephedrine off you for the purpose of manufacturing methamphetamine, would you agree with that.   It’s fairly obvious isn’t it, let’s be honest with each other?

A.       Yes.

[21]     Fleshing that out with evidence given in support of the present application, Mr Pulman said his sales of pseudoephedrine did not begin until the towards the end of 2005 and, contrary to his statement, he denied knowing the pseudoephedrine he

was supplying was to methamphetamine manufacturers.  He adhered to that position even when cross-examined on entries in the controlled drug register which showed sales under his name from early 2005.

[22]     That evidence was further elaborated upon in an affidavit of 6 August 2009 in support of the present application when he said that his Police statement was only made because he “naively believed I was assisting the Police as a prospective witness”, and further in Mr Pulman’s evidence on 5 May 2009 in opposition to the Crown’s application under s 344A of the Crimes Act 1961 that his Police statement be ruled admissible.  In that evidence, the following appears:

Q.        Talk of helping the Police exactly what help were you providing them with in your mind?

A.        Actually I had been mentioned or told by the community constable to continue supplying these medications and they would be able to get a wider net of these people.  So I continued doing those, hoping everything would be terminated in the future and everything would go right.

[23]     When he said he thought he had to undertake sales “because I was helping the Police, I was their undercover man in a way”, he said that:

Mr Surrey, our community constable, had talked to us and directed me to to continue supplying these drugs so they could get a wider net of these people. I thought I was helping the community by doing this.  I was never keen to sell these preparations, it is against my will but helping the community in a wider field I felt I should.

[24]     In cross-examination, the following passage occurred:

Just before we broke off just now, you were saying that you were acting for the community, is that right?.....I believe I was.

You were their undercover man was your phrase?.....Yes.

And the community constable had in effect told you to do this?.....Yes.

That is an admission that you were knowingly supplying pseudoephedrine to people involved in the manufacture of methamphetamine? ... I didn’t know all those people were druggies if that is what you are trying to say.   I am allowed to supply pseudoephedrine drugs to people in the community.

That wouldn’t be an undercover operation, by referring to it as being an undercover man in order to assist the police, you were knowingly supplying

pseudoedphedrine to people involved in methamphetamine, that is right isn’t it?......Yes.

[25]   Senior Constable Surrey acknowledged he had spoken to the Unichem Pharmacy Pukekohe staff – including Mr Pulman – on 26 August 2005 and told them pseudoephedrine could be extracted from over-the-counter flu medicines, and used to manufacture methamphetamine.   Asked by Mr Pulman how to deal with aggressive customers who demanded pseudoephedrine products even when offered alternatives, he said all customers must produce identification and be recorded in the register “because Police needed to know who they were so that we could discover who the pill shoppers were on-selling the pills to”.

(2)      Advice

[26]     In his affidavit, Mr Pulman said he was a 69 year old retired pharmacist who never had any dealings with the criminal justice system prior to these matters.  He found it “intimidating and harrowing”.

[27]     He said that in the months leading up to his original trial commencement date,  18  May  2009,  he  had  difficulties  communicating  with  his  then  counsel, Mr Cooke, and became concerned on that score as the s 344A hearing on 4 March

2009 approached.

[28]     Mr Pulman said he was unprepared for the s 344A hearing, had difficulty answering questions and got “very confused when I was giving my evidence”.

[29]     As the trial date approached, Mr Cooke told Mr Pulman the Crown were prepared to reduce the charges to the one representative charge of manufacturing and would not object to him “being offered a lighter sentence” if he pleaded guilty.

[30]     Mr Pulman struggled with the “concept that I should even consider pleading guilty” and accordingly went with his wife to consult Mr Cooke on 14 May 2009. He said they were told Mr Cooke had discussed his case with senior counsel who agreed Mr Cooke was “on the right track” with his advice.  Mr Cooke also told him there  was  too  much  evidence  against  him  and  the  trial  process  would  be

“overwhelming for me to handle”.  He referred to Mr Pulman’s poor performance as a witness in the pre-trial hearing.

[31]     Mr and Mrs Pulman discussed what was phrased as the “Crown’s offer” and said that the “most influential information for us was that Mr Cooke had contacted a QC colleague who, Mr Cooke stated, was in agreement that the guilty plea was the way to go”.  They concluded Mr Cooke thought guilty verdicts were inevitable and even though Mr Pulman wanted to go to trial to explain to the jury why he supplied the pseudoephedrine, “eventually I felt I could not go against his advice that this was the most sensible way to go”.

[32]     Because of Mr Pulman’s concern about the advice he had received and felt “cheated” that he “lost my chance to explain why I had sold the pseudoephedrine”, he and his wife consulted Mr Cooke again on the Sunday before trial, 17 May.

[33]     His plea was entered the following day though he “really did not have time to think through what was happening”.

[34]     Mrs Pulman and their son made supporting affidavits.

[35]     Mr Grieve QC, senior counsel, was consulted by Mr Cooke and said he had a

15-minute telephone conversation with Mr Cooke on 14 May.  Mr Grieve saw none of the evidence.   He was told that there were many charges and the Crown had a strong  case.     Mr  Cooke  expressed  his  concerns  about  the  lengthy  sentence Mr Pulman might receive were he to be convicted by a jury on all counts he faced. Mr Grieve advised Mr Cooke that it was his responsibility as Mr Pulman’s lawyer to advise as to the plea and that if, on analysis, Mr Cooke’s conclusion was that guilty verdicts were the most likely result, he should so advise Mr Pulman and take instructions.   He offered to assist over the intervening weekend on payment of a significant fee.

[36]     Mr Cooke’s concerns as to Mr Pulman’s capacity to appreciate the position in which  he  found  himself  had  been  such  that  he  had  his  client  psychiatrically examined just before the pre-trial hearing with a view to possible pleas of insanity or

unfitness  to  stand  trial but  the psychiatrist,  who  gave evidence at  the  4  March hearing, said that although Mr Pulman was “rather thought disordered” and his “comprehension … has been compromised”, Mr Pulman’s mental state was not such as would justify either special plea.

[37]     Mr Cooke swore an affidavit for this hearing and gave evidence.  He noted a number of interviews with the applicant, including the difficult issues Mr Pulman faced in his suggestion the Police condoned his sales of pseudoephedrine-based products and the obviously difficult issues arising from the facts of the matter.

[38]     He put in evidence the brief he had prepared for Mr Pulman prior to the s 344A hearing and said that in his view Mr Pulman gave “evidence very badly especially when under cross-examination”.  Mr Cooke concluded Mr Pulman would need to give evidence at trial to explain his sales and was likely to perform similarly.

[39]     He said, and confirmed in evidence, that this left him extremely worried about Mr Pulman’s defence.   He thought it would be reckless for Mr Pulman to continue to defend the charges as the facts were strongly against his client and he did not seem to appreciate the probable consequences and the likely sentence which might be imposed were he to be found guilty on all charges faced.

[40]     At one of the consultations in the week prior to trial, he staged a mock cross- examination of his client and again formed the view he performed poorly.   He therefore advised Mr Pulman he was at risk of being convicted on all counts.

[41]     He spoke to Mr Grieve during the afternoon before the next consultation to ensure he had not overlooked a “glaringly obvious” defence and concluded after advice from Mr Grieve that Mr Pulman had no defences to the charges which were likely to achieve acquittal.

[42]     Mrs Pulman reluctantly agreed that evening that Mr Pulman should plead guilty, advice which was confirmed after the consultation with the Pulmans and their son on the night before trial.

[43]    Mr Cooke confirmed his affidavit in evidence.   He was cross-examined extensively about a letter dated 10 March 2009 he had written Mr Pulman expressing somewhat equivocal advice as to the applicant’s position but explained the letter was directed both to the possible psychiatric pleas he had in mind and so as not to indicate to Mr Pulman Mr Cooke was abandoning him.

[44]     In cross-examination Mr Cooke acknowledged not having recently read the leading decisions  on  the  relevant  area of  law.    When  the  four  elements  of  the principal offence with which Mr Pulman was charged were put to him, he acknowledged that “my advice to him was not in that manner”, concerning the state of an accused’s knowledge at the time of sale and that the products were sold to assist in the manufacture of methamphetamine.    It was  suggested Mr Pulman’s acknowledgement in his statement of knowing purchasers were making methamphetamine out of the products he sold was simply an admission in hindsight.

[45]     What was, in shorthand, referred to as the Surrey defence – that is to say that Mr  Pulman’s  actions  were  condoned  by  the  Police  and  confirmed  by  Senior Constable Surrey – was accepted as not being a defence, although it might impact on the state of Mr Pulman’s knowledge.

[46]     Mr Cooke accepted his discussion with Mr Grieve was not to go into the evidence in detail though he said he could clearly recall Mr Grieve saying that he would “back” Mr Cooke as to his advice concerning the guilty plea.

Submissions

[47]     For Mr Pulman, Mr Cullen submitted the plea had, in the circumstances of this case, occasioned a miscarriage of justice; that Mr Pulman entered the plea as a result of unfair and improper pressures or erroneous advice from Mr Cooke; and that he had an arguable defence to all charges.

[48]     Mr Cullen dealt with what he submitted was the evidential foundation for those submissions and, in particular, that because of Mr Pulman’s considerable community contribution over a lengthy period, Mr Pulman’s evidence was credible

that he sold customers pseudoephedrine products in an unorthodox manner at an unusual time and for an indeterminate period, though doing so to “get these people out of the shop”.   He noted Mr Pulman has consistently asserted that following Senior Constable Surrey’s visit to the pharmacy, he felt he had been authorised – if not advised – to continue with sales to assist the Police and misunderstood the Police attitude to the sales.  He made the point that Mr Pulman’s sales persisted even after he was aware surveillance cameras had been installed.

[49]     Mr Cullen was critical of Mr Cooke’s advice, even suggesting counsel had reversed the onus of proof when he spoke of a “need” for Mr Pulman to “convince” a jury.  He submitted that, in effect, Mr Cooke substituted his own view of the facts, first, for those of Mr Pulman and, secondly, for those of the jury.

[50]   Mr Cullen was also critical of the purpose and content of Mr Cooke’s consultation  with  Mr  Grieve and  the  former’s  “mock”  cross-examination  of  his client.

[51]     Accordingly, Mr Pulman’s plea had been entered when he wrongly believed he had no choice in the matter.

[52]     For the Crown, Messrs Northwood and McCoubrey submitted there was no arguable defence to the charges Mr Pulman faced and, whatever Mr Pulman’s psychological makeup, no miscarriage of justice.   On all the evidence, it was submitted Mr Pulman had no arguable defence that he was not guilty of being a party to methamphetamine manufacture, a submission they supported by reference to the applicant’s statement and evidence.   Any conclusion that Mr Pulman, in selling pseudoephedrine, did not know he was assisting in methamphetamine manufacture was at odds with all the evidence and the applicant’s statement.  Particular reliance was placed on the following passage from Robertson et al Adams on Criminal Law (vol 1) CA66.19(2)(a) p 1-528(b):

(a)       The meaning of “purpose”

The meaning of “purpose” in s 66(1)(b) was examined at length in R v

Wentworth [1993] 2 NZLR 450, in also reported as R v Richards (1992)

9 CRNZ 355, where a pharmacist was charged with aiding the homebake manufacture of heroin by supplying codeine used for that purpose. The High

Court rejected the submission that it was necessary to prove that the accused wanted  heroin  to  be  manufactured  and  held  that,  in  this  context,  no distinction is to be drawn between purpose and intention. For the same interpretation of “purpose” in the aiding provision of the Canadian Criminal Code, see R v Hibbert [1995] 2 SCR 973; (1995) 99 CCC (3d) 193 (SCC); R v Heldson (2007) 216 CCC (3d) 1 (Ont. CA). Intention includes both “direct” intention, where a consequence is desired as an end in itself, and “oblique” intention, where a consequence, although not desired, is seen with “sufficient certainty” (which probably means “virtually” or “morally” certain: see CA20.16). Either state of mind is sufficient to constitute the “purpose” required by s 66(1)(b). The relevant consequence is variously described as encouragement or assistance in the commission of the principal offence, or the commission of the principal offence.

An alleged aider will seldom be able to foresee as certain that the principal will indeed commit the offence. It is enough if the former desires the commission of the offence, or wants to help or encourage its commission, or foresees that it is virtually certain, and not merely likely, that his or her conduct will help or encourage the commission of the offence or conduct by the  principal that is intended  to  bring about that result: R  v Wentworth

26 May 1993, CA10/93.  The conclusions reached in Wentworth (above) as to the meaning of “purpose” in s 66(1)(b) were not challenged before the Court of Appeal, which accepted that it was enough that the accused “knew the  tablets  were  to  be  used  for”  the  manufacture  of  either  heroin  or morphine. See CA66.19(1)(a).

[53]     Any misapprehension on Mr Pulman’s part that he had been in some way authorised or encouraged by the Police to sell pseudoephedrine in the manner he did could not amount to a defence to a man who had knowingly sold pseudoephedrine to “pill shoppers” for nearly three years up to the termination of “Operation Mordor” on  4  December  2007.    No  defence  of  “officially-induced  error”  exists  in  New Zealand law to provide a substantive defence to charges under Misuse of Drugs Act

1975.  The Crimes Act 1961 s 25 is against the applicant.

[54]     The Crown submitted that, in those circumstances, Mr Cooke’s advice was correct and any criticism failed to pay proper regard to such issues as the increasing stress experienced by those charged with criminal offences as their trial nears.

Discussion and Decision

[55]     On the facts of the matter, there can be no doubt:

a)       That  Mr  Pulman  sold  considerable  quantities  of  pseudoephedrine- based products to a relatively narrow range of customers at an unconventional time and in an unconventional way over a lengthy period;

b)That Mr Pulman knew, certainly after 25 August 2006 and, as an experienced pharmacist, very probably before that time, that pseudoephedrine-based cold or flu decongestants could be used to manufacture methamphetamine; and

c)       That Mr Pulman could only be convicted as a party to manufacturing methamphetamine if the ingredients outlined in Wentworth (at 453) could be proved by the Crown.

[56]     The cumulative effect of the depositions, Mr Pulman’s admissible statement to Police and his evidence – also admissible against him - at two interlocutory hearings in this Court, all point very strongly to a view that a jury would very probably conclude that the Crown could prove the charge of being party to manufacturing methamphetamine to the required standard.   The only defence for which  Mr  Pulman  argues  is  that,  in  the  circumstances,  although  there  is  no distinction between purpose and intention, his “oblique intention” - that the consequence of manufacturing methamphetamine was not desired and was not seen with “sufficient certainty” (which probably means “virtually” or “morally” certain)” Adams (op.cit)

[57]     That is to say his defence is that his selling pseudoephedrine-based products, in the circumstances in which he sold them, was, because of his – admittedly entirely misguided – thinking that he was assisting the Police in so doing, might be sufficient to furnish him a defence and thus lead to acquittal.

[58]     Reflection leads to the conclusion that there is nothing in this case to furnish Mr Pulman with such a defence, probably throughout the entire period with which he is charged but, more particularly, in the period after 26 August 2005.   His protestations that his sales only began after Senior Constable Surrey’s visit, are

unsustainable in light of the entries in his name in the controlled drugs register. Even if he believed misguidedly that what he was doing – again, particularly after

26 August 2005 – was to assist the Police, he made no effort to bring his activities to Police notice and no effort to document his sales in a way which might assist the apprehension and prosecution of those responsible. In any event, any belief on his part that he was assisting Police may perhaps be raised as an argument in mitigation of sentence but cannot amount to a defence that he did not know the pseudoephedrine-based substances he was selling and the manner in which he was selling them would lead to undesired but foreseen consequences of the products being utilised in methamphetamine manufacture.

[59]     Seen in the light of Wentworth, Mr Pulman has admitted that purchasers of pseudoephedrine-based products from him were going to use them to manufacture methamphetamine.  He intended to help them in the sense that he deliberately sold them pseudoephedrine-based products, knowing they could and would be used in the manufacture of methamphetamine.  His sales with that knowledge were intentional and without the purchases of such products the manufacture of methamphetamine by buyers would have been impossible.  He may not have wanted the pseudoephedrine- based products to be used for methamphetamine manufacture and he may have sold the products thinking, in some misguided way, that he was assisting the Police in so doing,  but  when  the  several  purposes  of  his  deliberate  act  of  selling  included innocent purposes and also included the purpose of assisting others to manufacture methamphetamine, as the authorities discussed show that is sufficient to make Mr Pulman liable for the offence to which he pleaded guilty.  To put that rather more shortly, he sold pseudoephedrine-based product to people to assist them in manufacturing methamphetamine because he says he thought that would make it easier for Police to apprehend them.  That makes methamphetamine manufacture one of the purposes of his sales, and disposes of any suggestion he did not intend to assist buyers in manufacturing the drug.

[60]     As said in Heta, Mr Pulman knew that the consequences of his actions in deliberately selling pseudoephedrine-based products, in the circumstances in which the sales occurred, was to assist in the commission of the crime of manufacturing

methamphetamine and it was immaterial that his sales may have been motivated, misguidedly, by some other consideration.

[61]     In  those  circumstances,  the  conclusion  must  be that  Mr  Pulman  has  not demonstrated any arguable defence, based on any recognised justification as set out in the authorities and his application for leave to withdraw his plea of guilty must accordingly be dismissed.

[62]     Two further matters warrant noting.

[63]     In the first place, although his advice to Mr Pulman might arguably be said not to have been optimum, there is no basis for concluding that Mr Cooke’s advice was inadequate, improper or materially lacking.  He had what was obviously a client he found difficult to advise and be sure that his advice was properly evaluated by his client in giving instructions.  He therefore adopted the slightly unusual procedure of having  Mr  Pulman  psychiatrically  examined.     The  way  in  which  he  sought Mr Grieve’s  advice may not  have  been  strongly based  on  the  evidence  but  the s 344A decision - only delivered a comparatively brief period before the trial date - and the fact Mr Cooke thought it necessary to obtain a second opinion as best he could in the time available, should not be thought to depart from good practice.

[64]     No doubt Mr Pulman and his family felt increasingly pressured as the trial commencement became daily more imminent, but there is nothing unusual about that.  Mr Cooke might also perhaps have explained his advice more plainly, but the advice that the best course for Mr Pulman to follow was to plead guilty to the one count which the Crown would accept as reflecting his criminality instead of going to trial on 37 counts is difficult to fault.

[65]     In those circumstances, the more detailed criticisms advanced concerning

Mr Cooke’s representation do not warrant detailed discussion.

[66]     The second issue to note concerns Mr Pulman’s knowledge of the likely future conduct of the matter, differentiating between the present position and the position were the application to be granted.

[67]     If Mr Pulman had an arguable defence to the main charge of being party to the manufacture of methamphetamine there would, of course, be no basis not to permit him to withdraw his guilty plea and, in due course, obtain the jury’s verdict on his guilt or innocence.  As was said in Turrall (at 313):

This Court should be the fountain of justice and ensure that no man is wrongfully convicted even if it is his own foolish act that has brought this situation about.

[68]     But the fact is that Mr Pulman was charged with five counts of manufacturing methamphetamine as a party with named others and one count of manufacturing methamphetamine as  a  party with unknown persons, plus 31 charges  of selling pseudoephedrine.

[69]     He pleaded guilty to the one count of manufacturing methamphetamine as a party with anonymous others.   When he comes to be sentenced he is therefore entitled to be sentenced as a secondary party and have his plea taken into account in reduction of sentence.

[70]     Had this application been granted, conviction on the charge to which he pleaded guilty would have been virtually inevitable and the Crown made clear at this hearing that if the application succeeded it would have re-charged Mr Pulman, if possible, with all the 37 offences he originally faced (R v Taylor [2008] NZCA 885

Adams on Criminal Law para CA347.03 p 1-1994 347.05 p 1-144(a)).  Conviction on the charges of selling pseudoephedrine would have almost certainly been inevitable given Mr Pulman’s admissions and, provided those named in the other charges of manufacturing methamphetamine – two of whom have been convicted of that  offence  –  came  up  to  brief,  conviction  on  the  remaining  charges  of manufacturing methamphetamine would also have seemed likely.  Had he been come to be sentenced on all 37 charges, the result for Mr Pulman was likely to have been significantly more severe than the result of dismissing this application.

[71]     In giving evidence on this application, it was made plain to Mr Pulman on several occasions that, in terms of result, he was almost certainly to be significantly better off if his application to withdraw his plea was dismissed.  He understood that.

Result

[72]     However, those issues are, in the circumstances, sidelights.

[73]     Mr Pulman’s application for leave to withdraw his guilty plea is dismissed. He is  remanded  on  bail  to  a criminal  callover  in  the Auckland  High  Court  on

11 November 2009 at 9:00am for the setting of a date for sentence.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Crown Solicitor, PO Box 2213 Auckland 1140

Email:  bruce[email protected]

[email protected]

Copy for:

Steve D Cullen, P O Box 77092 Mt Albert, Auckland 1350

Email:   [email protected]

Nigel Cooke (??)

Case Officer:     April[email protected]