R v S HC Hamilton Cri-2008-019-1304

[2008] NZHC 1199

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2008-019-001304

THE QUEEN

v

S

Hearing:         18 July 2008

Appearances: R G Douch for the Crown

W N Dollimore for the Accused

Judgment:      28 July 2008

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 28 July 2008 at 4.00 pm, pursuant to

r 540(4) of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     W N Dollimore P O Box 19115 Hamilton 2351 for the Accused

Solicitors:   Almao Douch P O Box 19173 Hamilton 2001 for the Crown

R V S HC HAM CRI-2008-019-001304  28 July 2008

[1]      The Crown has, by indictment, laid a number of charges under the Misuse of

Drugs Act 1975 against Mr S  .  Included in these charges are:

i)Count 1: possession of the class A controlled drug methamphetamine for the purpose of supply or administering or offering to supply or administer that drug to any person or otherwise deal in that drug; and

ii)Count  2:  supplied  the  class  A  controlled  drug methamphetamine to a person or persons unknown.

[2]      Before he stands trial, he has applied for a discharge under s 347 of the Crimes Act 1961 on counts 1 and 2.  He submits that the Crown case discloses no evidence on which a properly directed jury could reasonably convict him.

[3]      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)

[4]      R v Flyger was explained in the subsequent Court of Appeal decision in Parris v Attorney-General [2004] 1 NZLR 519. Parris v Attorney-General 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:

[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. …

[5]      At the same time the importance of an  accused person’s right to seek a discharge  under  s  347  was  recognised  by  Baragwanath  J  in  R  v  Lua  HC  AK CRI 2006-092-4336 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.

[6]      John Hansen J stated in R v Bromby HC DUN T05/5334 10 August 2006 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.

[7]     The Crown’s evidence is that Mr S   was found in possession of approximately 2.9 grams of methamphetamine.  This, as well as $563, was found on his person.  At his home the Police found two sets of digital scales, one of which had traces of methamphetamine on it.   Thirteen clear plastic zip-lock bags, commonly used  to  package  methamphetamine,  and  a  cutting  agent  frequently  used  for controlled drugs such as methamphetamine were also found at his home.

[8]      Mr S   has admitted being a user of methamphetamine and the Police evidence is that he has a drug habit that uses about 1.5 grams of methamphetamine a week and would cost him $2,000 per week to maintain.   He is unemployed.   His explanation for having the sum of $563 cash was that he had recently carried out a casual job for a cash payment but he would not provide details of that job or his employer.

[9]      The  Police  evidence  shows  Mr  S  ’s  home  to  be  very  run  down, nonetheless it has an extensive security camera system.

[10]     The Crown submits that the logical inferences to be drawn from this evidence are that Mr S   is a supplier of methamphetamine, he has sold methamphetamine, and the 2.9 grams was in his possession for the purpose of supply.

[11]     Mr S   submits that the evidence is insufficient to support such inferences. He also submits that the Crown’s evidence on the practice of suppliers of methamphetamine is inconsistent with the evidence in this case in that the 2.9 grams

is not an amount commonly used for the supply of the drug.  The usual amounts by which the drug is supplied are points, grams or ounces.  A point is usually 0.1 of a gram.  It is packaged in a small self-sealing plastic bag.  Grams are usually packaged in small self-sealing plastic bags.  Ounces are also usually packaged in plastic bags. The 2.9 grams of methamphetamine found on Mr S   was broken into  1.58 grams, 91 milligrams and 43 milligrams.   These amounts are not, he submits, consistent with the amounts of methamphetamine that dealers package for the supply of that drug.

Discussion

[12]     The facts available to a jury to consider in relation to count 1 are the amount of methamphetamine found on Mr S  , the way in which that amount was packaged (three amounts of different weights), the scales with traces of methamphetamine, the number of plastic zip-lock bags (which are usually used as point bags for sales of .1 gram) and the extent of Mr S  ’s drug habit.   I also consider that the circumstances in which he was found to be living are relevant to this count.  It seems to me that from these facts three possible conclusions can be inferred:

a)       Mr S   was in possession of the 2.9 grams of methamphetamine for his own use and not for the purpose of supply or any other purpose stated in s 6(1)(c) of the Act; or

b)He was in possession of the 2.9 grams of methamphetamine for one of the purposes set out in s 6(1)(c); or

c)       He was in possession of this methamphetamine for dual purposes in that it was both available for his use and to supply or administer to others.

[13]     The usual direction that is given to jurors is that if there is more than one inference available to them and they find the inferences to be of equal weight, they should draw the inference most favourable to the accused.  However, whether or not

the available inferences are of equal weight is essentially a question for the jury to determine.  It is not for me to conclude that a jury would find the above options to be of equal weight, and, therefore, a properly directed and reasonable jury could not convict the accused.   It follows that the application in relation to count 1 cannot succeed and, accordingly, it is dismissed.

[14]     I consider that for count 2 the relevant facts available for the jury to consider are those stated above, coupled with the addition of the amounts of cash found on Mr S  .  I consider that from the available evidence a jury might well conclude that Mr S   is someone who has supplied methamphetamine to some other person or persons.   The evidence is consistent with evidence of drug dealing.   There is nothing about the evidence relating to this count that supports the view that no reasonable jury properly directed could convict Mr S   on this count.  It follows that the application for discharge in respect of count 2 is also dismissed.

Result

[15]     The application under s 347 on counts 1 and 2 is dismissed.

Duffy J