R v Smith HC Auckland CRI 2006-092-10560

[2007] NZHC 2119

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-10560

THE QUEEN

v

JENNIFER MARIE SMITH

Hearing:         14 September 2007

Appearances: Howard Lawry for Crown

Hugh Leabourn for Accused

Judgment:      18 September 2007

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

4.00 pm on 18 September 2007

SOLICITORS

Meredith Connell (Auckland) for Crown

Hugh Leabourn (Auckland) for Accused

R V SMITH HC AK CRI 2006-092-10560  18 September 2007

Introduction

[1]      Ms Jennifer Smith has been committed along with three others for trial in this Court  in  February 2008  on  charges  of  manufacturing  methamphetamine  and  of possession of equipment, materials and precursor substances.

[2]      Ms Smith’s counsel, Mr Hugh Leabourn, has applied for an order discharging her from trial: s 347 Crimes Act 1961.  He submits there is insufficient evidence to support a conviction on any of the four charges.

Facts

[3]      The facts are not in dispute.  Police officers searched a residential property at

2 Waikopua Road, Whitford at 7 am on 28 July 2006.  They were acting pursuant to a warrant.  They found Ms Smith and the other three accused asleep at the address. She and another accused, Mr Gregory Sharpe, were in what is called Bedroom 1. Two of the other three bedrooms were empty.  The fourth contained items associated with another accused, Ms Melinda Lorigan.

[4]      The police found a wide range of materials, equipment and items which suggested that the building was being used as a clandestine methamphetamine manufacturing laboratory.   Among the equipment found were steam distillers, condensers, reaction vessels, filters, hotplates, an object known as a ‘hydrogen chloride gas generator’, and other items of glassware.   Chemicals and materials included iodine, red phosphorous, sodium hydroxide, ethanol and phosphorous acid. Precursor substances included toluene, acetone, pseudoephedine products and hydrochloric acid.

[5]      In    Bedroom 1    the    police    found    equipment    also    associated    with methamphetamine manufacturing.   Among the items were a container with grey shiny balls having the properties of iodine; two electric hotplates, a swab of one revealing methamphetamine, pseudoephedine and other residues; a plastic container of  yellow  residue;  a  bottle  of  acetone;  a  bottle  containing  hydrochloric  acid;  a

1.25 litre  plastic  container  with  a  liquid  (a  light  hydrocarbon  fuel  containing

pseudoephedine); and a one litre plastic bottle containing liquid including toluene and some pseudoephedine.   Also a swab of a window revealed methamphetamine and pseudoephedine.

[6]      The police had found female clothing in the wardrobe in Bedroom 1, along with a butane gas torch, a glass pipe and a light bulb with residue on it, and four packets  of  surgical   gloves  together  with   hypodermic  needles   and   syringes. Documents  associated  with  Ms Smith  and  Mr Sharpe  were  also  found  in  the wardrobe.

[7]      Ms Smith told a police officer that she had been staying at the address for varying times – first she was  there occasionally;  then  she was  there for  a few months; the last time she was there for three weeks.  Ms Smith said that she used Bedroom 1 to store her clothing but knew nothing about what was happening there.

[8]      Detective  Sergeant  Nicholas  McLeay,  the  officer-in-charge  of  the  Police National Clandestine Laboratory Response Team gave evidence at the preliminary hearing.   In his opinion methamphetamine manufacturing was carried out in three principal areas of the house – Bedroom 1, the kitchen and the garage; and the house was being used primarily as a drug laboratory, with limited use as a dwelling.

Decision

[9]      Mr Leabourn submits that, apart from Ms Smith’s admissions to the police, there is a distinct absence of any other evidence linking her to the address, let alone any   activities   involving   manufacturing   methamphetamine   or   possession   of equipment and substances used to manufacture the drug.  In particular, he says there is no evidence of her participation in the manufacturing process; nor is there any evidence of her exercising custody or control over any of the items found in the house.   There is no evidence that she was even present when any manufacturing occurred, or that she was responsible for bringing any of the equipment or chemical substances to the address, or guarding or taking responsibility for it.  He says that Ms Smith’s mere presence at the address, together with the discovery of a small amount of her personal property, is an insufficient basis for conviction.

[10]     The appropriate test is well settled.   On an application to discharge, the question is whether there is sufficient evidence upon which a reasonable jury, properly directed, could find Ms Smith guilty: R v Flyger [2001] 2 NZLR 721 (CA); Parris v Attorney-General [2004] 1 NZLR 519 (CA).

[11]     The charges fall into two categories.  The first and most serious, Count 1, is the  charge  of  manufacturing  methamphetamine.     I  agree  with  Mr Leabourn. Ms Smith’s presence in the house, even continual, could not constitute a sufficient evidential foundation for a finding beyond reasonable doubt that she participated, whether as principal or party, in the discrete activity of manufacturing methamphetamine.   That crime requires proof of active involvement in making or carrying out the process of producing the prescribed drug from its chemical ingredients or elements.  Something more than personal presence is required, or even knowledge of the presence of relevant equipment, materials or substances, to link Ms Smith to that offence.  She must be discharged on Count 1.

[12]     The other three charges, Counts 2, 3 and 4, are of a different legal character. Ms Smith is charged jointly with others of having in her possession (1) equipment that was capable of being used in or for the commission of manufacturing methamphetamine; (2) material that was capable of being used for the same purpose; and (3) precursor substances that were to be used for the same purpose.  Most of the equipment,  materials  and  substances  were  found  in  the  kitchen  and  garage. However, some of them were found in Bedroom 1, principally the hotplates, toluene, acetone and pseudoephedine.

[13]     There  is  a  sufficient  evidential  basis  for  a  jury  to  infer  that  Ms Smith occupied Bedroom 1 on a permanent or semi-permanent basis.   The question of whether she was in possession of a piece of equipment, material or substance found there or elsewhere in the house or garage is determined by proving that she had (1) knowledge of its presence; (2) an element of control, in the sense that the object was in a location where it was within her power to control it; (3) an intention and willingness to exercise possession of the thing; and (4) guilty knowledge – in the sense   of   that   the   thing   was   an   item   or   article   used   in   manufacturing

methamphetamine, and of its effects or characteristics when produced: Adams on

Criminal Law. Vol 3, MD7.03.

[14]     I am satisfied that on the undisputed evidence a jury, properly directed, could reasonably conclude that the Crown has established all constituent elements of the possession charges against Ms Smith.

Result

[15]     Ms  Smith  is  discharged  from  trial  on  Count  1  in  the  indictment  of manufacturing methamphetamine at Whitford on or about 28 July 2006.  However, she must face trial on the remaining three charges, Counts 2, 3 and 4, of possession of equipment capable of being used to manufacture methamphetamine, possession of

materials for the same purpose, and possession of precursor substances.

Rhys Harrison J