S v Police HC Auckland CRI 2007-092-6572
[2008] NZHC 2304
•2 May 2008
This case has been anonymized
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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 2007-092-6572
S
Applicant
v
NEW ZEALAND POLICE
Respondent
Hearing: 1 May 2008
Appearances: C Comeskey for Applicant
C Ryan for Respondent
Judgment: 2 May 2008 at 4: 55 p.m.
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 2 May 2008 at 4:55 p.m.. pursuant to r540(4) of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr C Comeskey, Barrister, Auckland
Ms C Ryan, Meredith Connell, Office of the Crown Solicitor, Auckland
S V NEW ZEALAND POLICE HC AK CRI 2007-092-6572 2 May 2008
[1] Ms S has applied under s 347 of the Crimes Act 1961 for an order that she be discharged on three counts on the grounds that the evidence is insufficient to prove the charges. The charges are that, together with Michael Dane Homburg, she manufactured methamphetamine, had possession of methamphetamine for supply, and had possession of equipment capable of being used in the manufacture of methamphetamine intending the equipment be used for that purpose.
[2] The essence of the Crown case is that there is clear evidence that methamphetamine was manufactured at 2 Lissleton Drive, Manukau, over 25 grams of methamphetamine was found in a drawer in the house, and the equipment was found there. 2 Lissleton Drive was the home of Ms S and her husband, Mr Homburg. The Crown says there is a body of evidence sufficiently linking Ms S to the manufacture of methamphetamine and to the possession charges in respect of what was found in the house.
[3] For Ms S , Mr Comeskey accepted that there is sufficient evidence to go to a jury on the question of Ms S ’s occupancy of the property over the relevant period. Mr Comeskey also accepted that there is sufficient evidence to go to the jury that methamphetamine was manufactured at Lissleton Drive. There is also a substantial body of evidence, not contested in the hearing before me, as to the presence of methamphetamine well in excess of the amount at which possession for sale is presumed, and of the presence of equipment capable of being used in the manufacture of methamphetamine. The essence of the argument for Ms S is that there is insufficient evidence linking her in the necessary legal sense to the matters just described.
The evidence
[4] There has been no oral evidence. Committal for trial, on 18 October 2007, was based on the Crown written briefs of evidence and no evidence was called before me. The application has proceeded by reference to: the briefs of evidence of the Crown witnesses; a written tenancy agreement signed by Ms S and Mr Homburg for 2 Lissleton Drive, commencing 16 December 2005; a property
inspection report for 2 Lissleton Drive of the same date and signed by Mr Homburg; a Police jobsheet of a Constable who carried out a detailed inspection; a sketch plan of the house; and the Police photograph booklet. A few additional facts were confirmed or accepted by counsel in the course of the hearing, and I will note these.
[5] Mr Homburg and Ms S are married. This was advice from the bar from Mr Comeskey. I was not told how long they have been married except that it has been for some years. On 16 December 2005 Mr Homburg and Ms S signed the tenancy agreement for 2 Lissleton Drive. When the tenancy agreement was entered into the landlord was told that the property would be occupied by Ms S , Mr Homburg, and their two sons. The tenant is recorded as Ms S . On the same date Mr Homburg signed the inspection report. It is apparent from this that the substantial number of incriminating things found in the house by the Police in March 2006 were not in it when it was let to Ms S and Mr Homburg; and there was no contention to the contrary on behalf of Ms S .
[6] Over the period from December 2005 until the Police search on 1 March
2006 a neighbour, Ms Cheer, saw three occupants of the property, two males and a female. Ms Cheer’s brief of evidence records that she can identify one of the males as Mr Homburg and the female as Ms S . Ms Cheer says that she regularly saw Ms S and Mr Homburg at the property. She said she noticed them coming and going from the house nearly everyday.
[7] There is no evidence from Ms Cheer recording a description of the third male. In respect of the advice given to the landlord that two sons of Ms S and Mr Homburg would occupy the property with them, there is also no evidence from Ms Cheer of the presence of two males in addition to Mr Homburg. When the Police executed a search warrant on 1 March 2006 two people were at the property, Mr Homburg, who attempted to flee, and an elderly man named Ted Lee. Mr Lee has since died. Two documents found by the Police were Mercury Energy letters. Apparently these record bills for substantial consumption of electricity. Mr Comeskey advised me from the bar that the power account relates to 2 Lissleton Drive.
[8] The Police arrived at the property to execute a search warrant at 7:00 a.m. on
1 March 2006. As noted above, Mr Homburg and Mr Lee were present, and Mr Homburg attempted to flee. Ms S was not present. She was not spoken to until 26 March, as noted below.
[9] The Police search on and after 1 March 2006, and subsequent ESR analysis, does provide evidence from which a jury could conclude that methamphetamine was manufactured at Lissleton Drive. Because of Mr Comeskey’s acceptance of this, there is no need to summarise evidence relevant to this aspect. The only issue, but the critical issue, is whether there is sufficient evidence from which a jury, properly directed, could conclude that Ms S was involved in the manufacture of methamphetamine which occurred at Lissleton Drive, and had possession as charged in the other counts.
[10] There is no direct evidence linking Ms S with the manufacture of methamphetamine. For example, the Police did not find any of Ms S ’s fingerprints on any relevant items, but they did find Mr Homburg’s fingerprints on relevant items. None of the documents found in the house provide a direct link between Ms S and manufacture of methamphetamine. The Police did find
$10,000 in $100 bills in a jacket in a wardrobe containing male and female clothing. This was in the only bedroom in the house being used as a bedroom. However, affidavits were produced from or on behalf of Mr Homburg (it appears on behalf of Mr Homburg) that the money came from members of the Thai or Vietnamese community, the Police accepted that they could not disprove this and the money was returned to Mr Homburg. Also, on the question of direct links, and as earlier recorded, Ms S was not at the house when the Police first entered at 7:00 a.m. on 1 March 2006. However, at that time manufacture of methamphetamine was not in progress.
[11] In addition to the absence of evidence of direct links between Ms S and the manufacture of methamphetamine, there is the presence of two other people in respect of whom the evidence may be somewhat stronger – Mr Homburg and Mr Lee (although Mr Lee died and there are no charges against him). Because of this there is, on the Crown case, evidence which would enable a submission to be made
for Ms S to a jury that, although manufacture may have occurred at Lissleton Drive, and Ms S was living there, others were involved in the manufacture. The inference of Ms S ’s involvement that might otherwise arise because of her occupancy, might not be reasonably open to the jury.
[12] I have given considerations of this nature full weight, but I am satisfied that there is sufficient evidence for the charge of manufacture against Ms S to proceed. I will summarise the main pieces of circumstantial evidence which lead me to this conclusion, not all of which have already been referred to. This summary does not set matters out in any order of importance:
a) Ms S was a full time occupier of 2 Lissleton Drive, with Mr
Homburg, her husband.
b)The tenancy was taken on the basis that the house would be occupied by Ms S , Mr Homburg and their two sons, but there is no evidence of occupancy by the two sons. This comes from the evidence earlier referred to of Ms Cheer and the fact that only one bedroom in this four bedroom house was used as a bedroom. An inference might be drawn that the reference to the sons was a deliberate lie of Ms S and Mr Homburg that the house was wanted for ordinary domestic arrangements for a family to disguise the real intention of drug manufacture.
c) The tenancy was for a fixed term, to July 2006, with a periodic tenancy after that date. An inference might be drawn from the short length of the fixed term that the lease was not taken for conventional purposes of residential occupancy.
d)One bedroom in the house was used as a normal bedroom and apparently occupied by Mr Homburg and Ms S . It appears they were the sole full-time occupiers.
e) The other three bedrooms contained large cannabis plants and their windows were covered with dark sheets or carpets (apparently charges arising out of this have already been dealt with).
f) Items related to the manufacture of methamphetamine were in prominent places in the house, and primarily in the kitchen, a communal room. Some of these items were sitting on bench tops or clearly visible, or in cupboards and drawers which would, in the normal course, be regularly opened. There was a four-neck reaction flask in the dishwasher, a hotplate in a box, and beakers on the bench.
g) Had manufacture been in progress when the Police arrived, with Mr Homburg and Mr Lee present but Ms S absent, the links between Ms S and actual manufacture might have been diminished to an extent, but that was not the case.
[13] From this summary, and it does not cover all relevant evidence, I am satisfied for the purposes of this application that there is sufficient evidence to prove not only that Ms S knew that methamphetamine was being manufactured, but also that she was involved in it with her husband. A jury might in the end decide that the various matters I have referred to are insufficient to enable the necessary inferences to be drawn beyond reasonable doubt. But that is not the question that I have to answer. I am satisfied there is sufficient evidence for a properly instructed jury to find Ms S guilty on the charge of manufacture of methamphetamine.
[14] I will come in a moment to the other two counts. There is one other piece of evidence referred to by Ms Ryan as important on the Crown case in respect of manufacture, as well as the other counts. This is the possibility that Ms S lied in a brief statement she made to Constable Davies on 26 March 2006, at Henderson Police Station:
I do not wish to make a statement about 2 Lissleton Drive because I don’t know anything about 2 Lissleton Drive.
The constable’s brief does not record any other relevant statement by Ms S . Ms Ryan submitted that a jury might conclude that this was a lie and, subject to the usual directions to the jury in that regard, that this might amount to further evidence establishing the charges against her. I mention this separately because I am hesitant to bring it into account on this application. There are aspects of context which may diminish the significance of this statement. Ms S had gone to the Henderson Police Station with Mr Homburg. When Constable Davies discovered that Ms S was there he asked to speak to her. Ms S contacted her lawyer. Ms S ’s very brief statement to Constable Davies then followed. A statement, in this context, that she did not know anything about 2 Lissleton Drive may not have meant she denied living there. It is unnecessary and inappropriate to say anything more about this.
[15] The discussion to this point has been directed principally to the count of manufacture of methamphetamine. On the counts of possession of methamphetamine for supply and possession of equipment I am also satisfied that there is sufficient evidence for the counts to go to a jury. That evidence is the evidence already discussed coupled with the fact that possession, in the necessary legal sense, may readily be inferred from the presence of the methamphetamine and the equipment in Ms S ’s own home.
[16] The application is therefore dismissed.
Peter Woodhouse J
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