R v W HC Whangarei CRI 2007-404-279

[2008] NZHC 1026

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-404-000279

THE QUEEN

v

W

Hearing:         1 July 2008

Appearances: M B Smith for Crown

C B Wilkinson-Smith for Accused

Judgment:      2 July 2008

JUDGMENT OF COOPER J

ON APPLICATIONS UNDER s 347

CRIMES ACT 1961

Solicitors:

Marsden Woods Inskip & Smith, Crown Solicitors, PO Box 146, Whangarei

Copy to:

C B Wilkinson-Smith, PO Box 276167, Manukau City

R V W HC WHA CRI 2007-404-000279  2 July 2008

[1]      The accused is being tried on an indictment containing two counts.  The first alleges that on or about the 21st day of June 2005 at Dargaville, he manufactured the Class A controlled drug methamphetamine.   The second count alleges that he committed arson.  The charge is brought under s 267(1)(b) of the Crimes Act 1961 and alleges that again, on or about 21 June 2005 at Dargaville, he recklessly and without claim of right damaged a house by fire, having no interest in the house.

[2]      The  Crown’s  case  has  concluded.    The  defence  has  elected  to  call  no evidence.  Mr Wilkinson-Smith however has sought that the accused be discharged on both counts on the basis that there is insufficient evidence upon which a properly directed jury could convict.

[3]      The approach to such applications is well known and I need do no more in the present case than refer to the statement of the law in Parris v Attorney-General [2004] 1 NZLR 519, Tipping J (for the Court of Appeal) said:

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.

[4]      The defence argument for a discharge is different in respect of each count.

Manufacture of methamphetamine

[5]      I deal first with the argument in relation to count 1.   Mr Wilkinson-Smith submits that there is insufficient evidence from which the jury could conclude that methamphetamine had been manufactured on or about 21 June 2005 as is alleged in the  indictment.    The  Crown  has  relied  on  evidence  from  Dr  Coxon,  an  expert

employed  by ESR,  to  the  effect  that  pseudoephedrine  was  manufactured  at  the address the Crown alleges on 21 June 2005.   A pot containing substances later shown to contain pseudoephedrine and chlorpheniramine was found in the kitchen of a  residential  property.    That  property  was  let  to  the  accused  and  shortly  after

1 o’clock on 21 June was consumed by fire.

[6]      Amongst the charred remains of the contents of the house once the fire was extinguished, four hot plates were found in the bathroom and laundry area.    It appears that on each of those hot plates pots had been placed, but no traces of methamphetamine or any precursor substances were found on either the hot plates or pots.

[7]      A trace of methamphetamine was found on a fifth hot plate which was stored in a cupboard.  The fire had damaged the cupboard doors but had not damaged the inside of the cupboard to any significant degree.

[8]      The extraction of pseudoephedrine is commonly the first part of the process involved in methamphetamine manufacture.  The Crown’s case has been that the fire probably started in the bathroom or laundry area where there were the four hot plates already mentioned.   It is thought that the fire has resulted from the ignition of flammable vapour produced by the heating of a flammable liquid on one or more of the hot plates.

[9]      As already mentioned, the fifth hot plate found in the cupboard was later shown to have traces of methamphetamine on it.  There was no methamphetamine found on any of the other items analysed.   Mr Wilkinson-Smith submits that the evidence is consistent with the production of either pseudoephedrine or methamphetamine inasmuch as both activities can result in the production of a flammable vapour.  One of the Crown’s witnesses was a Mr Morgan-Smith, a senior forensic scientist employed by ESR Ltd.  It was his evidence that processes for the extraction of pseudoephedrine from pharmaceutical preparation often involve flammable substances.

[10]     Referring to R v Laugalis (1993) 10 CRNZ 350 Mr Wilkinson-Smith argues that the jury could not exclude as a reasonable hypothesis based on the evidence that all that had been manufactured was pseudoephedrine.   If all that had been manufactured was pseudoephedrine the accused would not have committed the offence of manufacturing methamphetamine.

[11]     For the Crown, Mr Smith pointed to the existence of the methamphetamine found on the hot plate in the cupboard.  Although it is plain that that hot plate was not in use at the time that the fire started, he contended that the jury could rely on it to show that the accused had indeed manufactured methamphetamine on some previous occasion.  He pointed out that manufacture on or about 21 June as is alleged in the indictment, is not an essential element of the offence and that the Crown could rely on an inference that the accused had manufactured methamphetamine at some stage in the past.  That in turn would support an inference that he had done so on the present occasion, or could be relied on as direct evidence of previous manufacture.

[12]     There are two difficulties with that reasoning.   The first  is  that  there is nothing to show on the evidence that methamphetamine was manufactured on or about 21 June.   As Dr Coxon conceded in cross-examination, it is not possible to give a date when methamphetamine has been manufactured.    So the methamphetamine found on the hot plate in the cupboard might have been there for any length of time.   In that case it is not possible to rely on its presence as an indication that methamphetamine had been manufactured at the premises on or about

21 June.

[13]     Secondly, insofar as Mr Smith contended that the Crown could rely on it by inviting the jury to infer that Mr W   had been involved in the manufacture of methamphetamine on some previous occasion, that would be a substantial change to the Crown’s case as it has been run to this point.  The Crown has closed its case and the defence has made its election not to call evidence on the basis of an allegation that manufacture took place on or about 21 June and it would be wrong I think, to leave the case to the jury on the basis that they might conclude that Mr W   had manufactured methamphetamine on some unspecified date before 21 June.

[14]     In  the  circumstances  I have  determined  that  the  jury  could  not  properly convict and the accused should be discharged on the count of manufacturing methamphetamine, but the Crown should be given the right to proffer an amended charge, alleging that the accused attempted to manufacture methamphetamine on or about 21 June 2005.

Arson

[15]     As I have already stated, the arson count is brought under s 267(1)(b) of the

Crimes Act.  Under that provision every one commits arson who:

Intentionally or recklessly, and without claim of right, damages by fire …

any immovable property … in which that person has no interest.

[16]     One of the essential elements of the offence that the Crown must prove beyond reasonable doubt is that the accused acted intentionally or recklessly.  The Crown’s case here is that he acted recklessly.  That is to say, he appreciated there was a risk that if he heated flammable liquids on hot plates a fire might result, yet chose to do so.

[17]     Mr Wilkinson-Smith’s application insofar as this count is concerned, was based upon expert evidence given by Mr Dewerser.   Mr Dewerser is an electrical engineer specialising in heavy currents.   His evidence was called to support the Crown’s case that the fire began in the bathroom and laundry area where the hot plates were found.   His evidence was that the hot plates were plugged into an extension cord and working when the fire started.  The most badly damaged of the hot plates was in the bathroom area and it was there, he concluded, that the fire had commenced.  The hot plate upon examination was shown not to be faulty and had no combustible components.  The hot plate had, therefore, not directly caused the fire. The conclusion expressed in his evidence-in-chief was that the fire had possibly been caused by the substance in the pot boiling over and being ignited by the hot element.

[18]     Cross-examined by Mr Wilkinson-Smith Mr Dewerser accepted that contacts within the thermostat on the hot plate could be the source of sparks.  Such sparks can occur in the normal operation of a hot plate such as those found in the house.  The

sparking would not mean that the hot plate was faulty.  Because the sparking would be occurring in an enclosed area it would not be visible to the operator of the hot plate.     There  was  the  following  exchange  between  Mr  Wilkinson-Smith  and Mr Dewerser:

I am going to put a sequence of events to you and ask you whether it is possible that that sequence could have caused the fire in this case.  A person using the hot plate you’ve examined adjusts the thermostat causing a spark. The hot plate is being used in a confined space where there has been a build up of a flammable vapour, that spark then causes the vapour to ignite.  Is that a possible explanation for a fire?… Yes.

[19]     Mr Dewerser’s evidence was consistent with further evidence that the Crown called from Mr Morgan-Smith.  He too had relevant experience in on the causes of fire.  His evidence-in-chief icluded the following:

The patterns of fire damage indicated that the fire had most probably started in the bathroom or laundry area.  In my opinion the fire has most probably resulted from the ignition of flammable vapour produced by the heating of a flammable liquid on one, or more, of the hot plates.

It was not possible to determine the exact ignition cause for this fire.  In my opinion the most probable ignition mechanisms for this vapour would be either from the switching contacts within the hot plates or by the raising of the temperature of the flammable liquid above its auto-ignition temperature.

[20]     Mr Wilkinson-Smith pointed out that this evidence too contemplated as one possible cause of the fire, sparks operating within the hot plate device.  He contended that in order for the Crown to establish that Mr W   had acted recklessly, it would need to be demonstrated that he had acted with the knowledge of the risk that a fire could be caused in that way.  He referred to the discussion of recklessness in Adams on Criminal Law at paragraphs CA20.23 to 20.29 on the basis of which he argued that the Crown must show that the accused had been reckless in the subjective sense, that is to say he knew that there was a risk that an event may result from his conduct or  that  a  circumstance  may exist  but  nevertheless  takes  the  risk,  and  that  it  is unreasonable for him to take that risk having regard to the degree and nature of the risk which he knows to be present.  He submitted that the Crown could not meet that standard here because it could not be inferred that the accused would have known that sparks might be a normal consequence of operating the hot plate and that such sparks could result in ignition of the flammable vapour.

[21]     Mr Smith complained that the Crown had been prepared to argue the issue of recklessness on a pre-trial application when it sought leave to amend the indictment by including the count of arson.  The application for leave to amend the indictment had in the event been opposed on other grounds.   He pointed out that although Mr Dewerser’s evidence about the sparks in the hot plate device had been new, Mr Morgan-Smith’s evidence had been unchanged since depositions.  Be that as it may, there can be no doubt that Mr Wilkinson-Smith is entitled to raise the issue at this point.

[22]     Mr Smith’s main argument in opposition was that the operation of the hot plates  so  as to  heat  substances  was,  necessarily,  consciously to  run  the  risk  of causing a fire, and the accused should have known that fire was a possible consequence of his actions even if he did not know the precise mechanism by which the fire was caused.  Put simply, Mr Smith’s argument was that the accused should have known that a fire could be the result of applying heat to the contents of the pots on the hot plates.

[23]     Mr Wilkinson-Smith submitted in reply that that such an approach to the creation of criminal responsibility for arson would be far too open-ended and might potentially extend to innocent activities being carried out for legitimate purposes in manufacturing operations.

[24]     It is important to bear in mind that under s 267(1)(b) of the Crimes Act the essence of the offence is recklessly causing damage by fire.  The essential element of recklessness, on the preponderance of the authorities, can only be satisfied where the Crown shows that the accused knew that there was a risk of damage by fire as a result of his conduct, but took the risk, and that it was unreasonable for him to take it having regard to the degree and nature of the risk which he knew to be present.

[25]     There is evidence here from which a jury could conclude that the accused was heating four pots containing chemicals and or liquids giving off vapours as they were heated.  There is also evidence from which the jury could conclude that he was attempting to manufacture methamphetamine and would have been responsible for placing the chemicals and or liquids in the pots.  Consequently, he knew what they

were.  It is not known precisely what the cause of ignition of the fire was.  Possibly it was the internal sparking within the hot plate at the location in the bathroom where the evidence is the fire commenced;  possibly it was simply the result of elevating the temperature of the materials in the pot or pots.

[26]     Regardless of what caused the ignition, the accused had brought about the state of affairs which resulted in the fire damage.   In my view, the jury could properly conclude that he had acted recklessly by causing the flammable vapours to be present, that he knew there was a risk of a fire breaking out and that it was unreasonable for him to take that risk.

[27]     I therefore reject the accused’s application in relation to count 2.