The Queen v Brown; The Queen v Rangihuna

[2006] NZCA 178

IN THE COURT OF APPEAL OF NEW ZEALAND

CA111/06

THE QUEEN

v

CHANTEL MARIE BROWN

CA115/06

THE QUEEN

v

ANARU TEREI TAMATI RANGIHUNA

Hearing:26 July 2006

Court:Robertson, Goddard and Gendall JJ

Counsel:M I Sewell for Appellant Brown

J R Rapley for Appellant Rangihuna
K J Beaton for Crown

Judgment:26 July 2006 

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION ARE ALLOWED.  ALL CONVICTIONS ARE QUASHED AND A RE-TRIAL IS ORDERED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The two appellants faced trial in the High Court at Christchurch before Fogarty J and a jury on a total of six counts under the Misuse of Drugs Act 1975.  They were both convicted of manufacturing a class A controlled drug being methamphetamine contrary to ss 6(1)(b) and 2(a) of the Act, and possession of a precursor substance.  Mr Rangihuna was also convicted on two counts of possession of equipment.  Ms Brown was convicted of knowingly permitting premises to be used for the manufacture of methamphetamine.

[2]       Both Mr Rangihuna and Ms Brown were acquitted on a joint charge of possession of a class A drug, namely methamphetamine, for the purposes of supply.  Ms Brown was also acquitted on a charge of possession of equipment for the manufacture of a controlled drug.

[3]       Ms Brown was sentenced to an effective term of three and a half years’ imprisonment and Mr Rangihuna an effective term of seven and a half years’ imprisonment.  They both appeal against conviction and sentence.

Background

[4]       A number of grounds of appeal were raised, but of critical importance was the complaint that, although the Judge in his summing up to the jury referred to the onus of proof being on the Crown, he did not give any direction at that time as to standard of proof.

[5]       It was common ground before us that the only references to the standard of proof were in the context of:

(a)a tripartite direction concerning the appellant Ms Brown.  The words “reasonable doubt” were mentioned in relation to the full or partial acceptance by the jury of Ms Brown’s evidence.  The Judge did not state, however, the standard to which the jury must be satisfied if the Crown had proved the case and they rejected the appellant’s evidence.  This reference did not apply at all to Mr Rangihuna.

(b)a direction on circumstantial evidence.  The Judge referred to “an overall doubt” but did not direct that the jury had to be satisfied beyond reasonable doubt.

(c)the jury being required to return unanimous verdicts on each count. The Judge directed the jury that if they found themselves sure on a particular count against one of the accused, then they had a duty to convict but if they were not sure they had a duty to acquit.

[6]       In written submissions the Crown responsibly accepted that the totality of these passages was insufficient to adequately direct the jury as to the appropriate standard of proof which had to apply before they could find the Crown had established any of the charges.

[7]       A supplementary issue raised was with regard to the direction as to elements of offences.  There were two counts of possession of equipment for the manufacture of a controlled drug.  In directing the jury on the elements on the first of these, the Judge failed to state that the Crown was required to prove beyond reasonable doubt that the equipment at issue was capable of being used to manufacture a controlled drug.  This element was not directly in dispute, but it was not mentioned at all in respect of either count. 

[8]       In directing the jury on the second count, the Judge failed to mention any of the elements of the charge and did not specifically refer the jury back to his earlier direction.  Similarly in his directions on the charge of manufacturing the controlled drug, the Judge did not direct the jury as to the specific elements of this offence.

[9]       Although there are other issues which the Crown acknowledged might arguably be raised, it was accepted that, in respect of the question of the standard of proof and the identification of elements of offences, it was inevitable that the Court would conclude that a miscarriage of justice could have occurred in this trial.

[10]     The Crown accepted that, in the circumstances, it was not an appropriate case to apply the proviso.

Result

[11]     Accordingly the appeals against convictions are allowed.  All convictions are quashed and we order a re-trial of both appellants on the charges upon which they were convicted.

Solicitors:
Crown Law Office, Wellington