Tamati v New Zealand Police HC NAP CRI 2008-441-000013

[2008] NZHC 2447

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-441-000013

JAMIE LEE TAMATI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 July 2008

Appearances: A Sharko for the Appellant

D M Kerr for the Respondent

Judgment:      30 July 2008

(ORAL) JUDGMENT OF ANDREWS J [On appeal against conviction]

Solicitors:

Andrei Sharko Lawyer, P O Box 639, Napier 4015

Elvidge & Partners, P O Box 609, Napier 4015

TAMATI V NZ POLICE HC NAP CRI 2008-441-000013  30 July 2008

[1]    Ms  Tamati  appeals  against  her  conviction  for  possession  of methamphetamine.   Two issues arise on the appeal:

a)        Whether there was sufficient evidence to justify a finding that she was in possession of methamphetamine;

b)Whether there was a usable quantity of methamphetamine found in her possession.

Background

[2]      On 22 February 2007 Napier Police executed a search warrant at 24 Gilray Avenue, in Maraenui.   Ms Tamati was one of a number of people present at the address at the time.

[3]      A black shoulder bag containing a brown Quicksilver wallet was found in the kitchen.   Inside the wallet were four small ziplock plastic bags containing a white crystalline substance.  The contents of two of the bags were analysed and found to contain a small proportion of methamphetamine, around 10%.

[4]      There were some personal items in the bag and Ms Tamati said these were hers.  She said she had borrowed the bag but did not know to whom it belonged. When shown the ziplock bags containing the methamphetamine, and asked about them, she said, “What methamphetamine that’s rock salt.”

Possession of methamphetamine:  elements

[5]      Before Ms Tamati could be found guilty of possession the prosecution was required to prove beyond reasonable doubt that:

a)        Methamphetamine was present;  and

b)Ms Tamati had possession of it, that is, she knew that the methamphetamine was there, she knew what it was, and she intended to exercise control over it.

District Court decision

[6]      In addition to the evidence as to the search and of finding the wallet and ziplock bag, evidence was given in the District Court that methamphetamine is dealt with commonly in grams or fractions of a gram, in small ziplock plastic bags such as those found by the Police, known as point bags, containing between 0.08 and 0.1 grams.  There was also evidence of drug dealers cutting their methamphetamine by mixing it with a foreign substance such as rock salt, so as to dilute it and thereby increase profits.  The evidence was the methamphetamine might be cut a number of times before it is sold.

[7]      In her decision on 10 April 2008 Judge Mackintosh found that there was sufficient evidence to conclude that the ziplock bags were in Ms Tamati’s possession because they were found in a bag containing personal items belonging to her.

[8]      Further, she held that Ms Tamati knew that there was methamphetamine in the ziplock bags.  The Judge said that it defied credibility that someone would carry around rock salt in point bags.  The Judge was satisfied that Ms Tamati knew what was in the ziplock bags, that they contained methamphetamine, and that she had the ability and intention to exercise control over them.   Accordingly, the Judge was satisfied that Ms Tamati had possession of the methamphetamine.

[9]      Mr  Sharko  for  the  appellant  put  in  issue  whether  Ms  Tamati  was  in possession  of  a  usable  quantity of  methamphetamine,  pursuant  to  s 29A  of  the Misuse of Drugs Act 1975.

[10]     The two point bags analysed by ESR were found to contain 82 and 330 milligrams of crystalline substance respectively.   The substance was found to comprise approximately 10% methamphetamine.   The ESR evidence was that the methamphetamine was present in a very small quantity but it was usable in the same

way that methamphetamine is normally used, that is, by heating and inhaling the resultant vapour.

[11]     The Judge considered several authorities and concluded in a decision dated

5 May 2008 that the amount of methamphetamine in the bags was a usable quantity. She observed that usability was not to be confused with effectiveness.   That is, because an illicit drug is present in a small quantity that may not have a noticeable effect on a particular user, that does not mean that the drug is not usable.

Possession

[12]     On behalf of Ms Tamati, Mr Sharko challenged the Judge’s finding that Ms Tamati knew that the substance was methamphetamine.  In essence, he said that such knowledge would be inconsistent with Ms Tamati’s explanation to the Police that the bags contained rock salt.  Ms Tamati would not be expected to know that the bags contained both rock salt and methamphetamine because no dealer would tell a customer that they had cut the drug with rock salt, especially to the extent of 90%. Further, he submitted that a cut of 90% or more was not consistent with Police evidence that if the drug were cut too much the dealer was at risk of losing the customer.

[13]     On behalf of the Crown Mr Kerr submitted that Ms Tamati’s knowledge as to the contents of the ziplock bags could be inferred from the fact that:

a)        The methamphetamine was in small plastic ziplock bags inside the bag used by Ms Tamati;

b)Ms Tamati knew that the bag she was using contained a crystalline substance in four small plastic ziplock bags;

c)        Such     small     plastic     ziplock     bags     are     typically     used     for methamphetamine dealing.

[14]     From those facts the Judge could infer that Ms Tamati knew that the ziplock bags contained methamphetamine.  Mr Kerr submitted that no other inference was either logical or reasonable.

[15]     Mr Sharko argued in response that the inference was not logical or reasonable and that a contrary inference that Ms Tamati believed the bags contained rock salt was available.

[16]     I  am  satisfied  that  the  inference  made  by  the  Judge  was  logical  and reasonable and was open to her.  The inference is supported by the evidence that the crystalline substance was packaged in small ziplock bags which, on the evidence, are commonly used for dealing in methamphetamine.   Further, the bags did contain methamphetamine, albeit in small quantities.

[17]     Accordingly this grant of appeal fails.

Usability

[18]     This issue arises from s 29 of the Misuse of Drugs Act 1975 which reads as follows:

29A     Issue of usable quantity

(1)      On the summary trial of any person charged with an offence against this Act in which it is alleged that the defendant had in his possession any controlled drug in contravention of this Act, it shall not be necessary for the prosecution to prove that the amount of the controlled drug in the defendant's possession was of a usable quantity, unless the defendant puts the matter in issue.

(2)    Where, in the course of a summary trial, the defendant puts in issue the question of whether or not the amount of any controlled drug alleged to have been in his possession was of a usable quantity, the [District Court Judge] shall, if requested to do so by the prosecutor, adjourn the hearing for such period as he considers sufficient to enable the prosecutor to arrange for the attendance in Court of a witness or witnesses to adduce evidence that that amount was of a usable quantity; and, if the prosecutor has closed his case before the said question is put in issue, the [District Court Judge] shall also grant the prosecutor leave to re-open his case for the purpose of adducing evidence that the amount of the drug was of a usable quantity.

[19]     In the District Court evidence was accepted by the Judge that the quantity of methamphetamine was small but it could be used in the normal way by smoking.  In her decision of 5 May 2008 Judge Mackintosh referred to the judgments in Police v Emirali1, Ramzan v Police2, and R v Fitzgerald3.  In Emirali at p 480 the Court of Appeal observed that what is “usable” depends upon the nature of the particular drug, the size and condition of the sample, and whether the sample is capable of measurement. This reflected an observation made by Mahon J in the High Court judgment appealed from ([1976] 1 NZLR 286, at p 292) (upheld by the Court of

Appeal) that “a speck of lysergide is usable, as also is a drop of hashish oil or a diminutive quantity of heroin or cocaine.

[20]     In Ramzan the appellant was found in possession of a powder  weighing

5.5 mg containing 1.4 mg of heroin.  It was argued that this would be undetected by an ordinary person, let alone a habitual user, so it was not a usable quantity.   In his judgment  Roper  J  stressed  that  utility (or  usability) must  not  be confused  with effectiveness.   The 1.4 mg of heroin was usable notwithstanding that its effects would be negligible.

[21]     Holland  J’s  judgment  in  Fitzgerald  concerned  1.3 ml  of  liquid  which contained a trace (less than 0.001 g) of morphine.  It was argued that this was not a usable quantity.  Holland J referred to the judgments of Mahon J and the Court of Appeal in Emirali and held that it was capable of being used.

[22]     Mr Sharko submitted that the result in Ramzan might have been different if the High Court had considered the Court of Appeal’s judgment in Emirali.   He submitted that the efficacy of the drug in question must be relevant in determining its usability.   He drew support from the Court of Appeal’s observation in Emirali at p 480 that:

It may be relevant to consider whether the sample might reasonably be used in the circumstances of the case to supplement a similar sample or samples in order to give efficacy to the whole.

1    Police v Emirali [1976] 2 NZLR 476 (CA)

2    Ramzan v Police HC CHCH M484/82, 4 February 1983, Roper J

3    R v Fitzgerald HC CHCH S2-92, 5 February 1992, Holland J

[23]     He also submitted that considering the efficacy of sample was consistent with a comment in the text “Mathias Misuse of Drugs”4, with the Court of Appeal’s rejection in Emirali of the de minimus concept, and with the Court of Appeal’s view of the purpose of the Misuse of Drugs Act to prevent innocent use.     Mr Sharko sought to distinguish Fitzgerald because in that case there was evidence that the drug was intended to be used, whereas there is no such evidence here.

[24]     Thus, Mr Sharko submitted that usability relates to the quantity of the drug in question.   He submitted that this is borne out by the language of s 29A with the words “usable quantity”.  He submitted that the quantity of methamphetamine in this case could not be “illicitly used” and therefore methamphetamine was not present in a usable quantity.

[25]     Mr Kerr first noted that in her second decision the Judge had said that the prosecution was required to prove that there was a usable quantity of methamphetamine to the balance of probabilities.  The correct standard is of course that of beyond reasonable doubt.   Mr Sharko acknowledged that if the Judge had applied the correct test as to usability (that is, if she was correct in not involving the question of effectiveness) then there was sufficient evidence to prove it beyond reasonable doubt.

[26]     As  to  the substantive issue,  Mr  Kerr  submitted  that  there  was  sufficient evidence before the District Court to enable the Judge to be satisfied beyond reasonable doubt that there was a usable quantity of methamphetamine.  He referred to the evidence that the crystals could be smoked in the normal way, despite the low methamphetamine content.  He submitted that Police were not required to prove that smoking the methamphetamine  would have  an effect on the user.   Drawing on Roper J’s  observation  in  Ramzan  he  submitted  that  effect  does  not  equate  to usability.

[27]     I am satisfied that the interpretation Mr Sharko seeks to give the portion of the Court of Appeal’s judgment in Emirali referred to above, does not accord with

4    Brookers Misuse of Drugs

the  overall  tenor  of  the  judgment.    In  any  event  the  matter  is  required  to  be determined under s 29A.

[28]     In my judgment “usable quantity” simply means a quantity able to be used or capable of being used.  The evidence before the District Court was that there was methamphetamine in the ziplock bags, that was in a sufficient quantity to be measured, and that it was in a crystalline form such that it could have been placed in a pipe and heated so that its vapour could be inhaled.

[29]     On that evidence I am satisfied that the Judge was entitled to hold, as she did hold, that there was methamphetamine present in the bags in a usable quantity.

[30]  Section 29A does not require the prosecution to prove that the methamphetamine that was present would have had an effect on the user.   In this respect I accept Mr Kerr’s submission that the effectiveness of methamphetamine will vary according to the user.   As such, effectiveness cannot be a reliable and objective test for usability.  I do not accept that it should be incorporated into the test for usable quantity which would require, as Mr Sharko suggested, expert evidence.

[31]     Accordingly, this ground of appeal also fails.

[32]     As the appellant has not succeeded on either ground of appeal, the appeal is dismissed.

Andrews J