The Queen v Jittaphong Seekamut

[2003] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

CA82/03

THE QUEEN

v

JITTAPHONG SEEKAMUT

Coram:Keith J
Tipping J
Anderson J

Counsel:S D Cassidy for Appellant

J M Jelas for Crown

Judgment (on the papers):      10 July 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]       This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence and sentence

[2]       The appellant was convicted on his trial before a District Court Judge and jury on one count of possessing for supply a class B drug, namely methamphetamine, contrary to sections 6(1)(f) and (2)(b) of the Misuse of Drugs Act 1975 (count three).  He was acquitted in respect of a further count of possession of a class B drug for supply (count two) and in respect of one count of importing a class B drug (count one).  He was sentenced to 15 months imprisonment.  He appeals against his conviction only.

Relevant facts

[3]       On 26 May 2002, Customs Officers at the Auckland International Mail Centre intercepted two packages from Thailand, addressed to 4/127 Grand Drive, Remuera, Auckland.  

[4]       The first package contained, amongst other things, two metal tins of St Lukes brand “Prickly Heat” powder.  Inside each tin was a plastic bag.  One bag contained 270.8 grams of crystalline methamphetamine and the other contained 287.3 grams of the same substance.  The second package included a single tin of “Prickly Heat”, which concealed 305.6 grams of crystalline methamphetamine.

[5]       On 29 May 2002, a joint Police and Customs Operation was conducted pursuant to s12 of the Misuse of Drugs Act 1975.  This operation involved reintroducing the two packages to the postal system and substituting the majority of the drugs with a placebo crystal. 

[6]       At approximately 9 am on that day, the two packages were delivered to the stated address.  The appellant, Mr Seekamut, waited in a vehicle for the packages to be delivered.  He then took possession of the two packages and drove to the ‘Vege World’ carpark in Takanini.  Police apprehended the appellant when they saw him opening the package.

[7]       Later that day Police and Customs officers executed a search warrant at 13 Len Garlick Place, the address of the appellant’s supposedly estranged spouse. In a bedroom wardrobe they found a man’s suit jacket in the pocket of which was a plastic bag containing 27.6g of crystalline methamphetamine.  When spoken to by Police, the appellant denied any knowledge of drugs concealed in the packages and jacket.  Amongst the evidence, to which we later refer, was a fingerprint of the appellant’s on the bag, a set of scales also bearing his fingerprint and with traces of methamphetamine on the documentation and large sums of cash.

[8]       The appellant’s conviction was in respect of the drugs found at 13 Len Garlick Place.

[9]       The appellant appeals on the ground that there was insufficient evidence from which the jury could reasonably conclude that the appellant had possession of the drugs.

Grounds of appeal

[10]     The substance of the appeal is that none of the evidence was conclusive of guilt, that alternative inferences consistent with innocence were open to the jury, and that the jury should have drawn those inferences.

[11]     The appellant asserted that he did not reside at the Len Garlick address.  Further he says there was no evidence as to who owned the jacket, the drugs it contained, or who occupied the bedroom.  The appellant’s fingerprint was not found on the ‘deal bag’ as one might expect if he had been the person who packaged it for sale.  The fingerprint was on the outside of the outer bag.

[12]     Counsel submitted that the traces of methamphetamine found on the scales was evidence that the drug contacted the scales, and that the appellant’s fingerprint found on the scales is evidence that he touched them, but that this is insufficient to prove a possession for supply.

[13]     The appellant says $20,000 in cash found at the address could be explained by his having recently sold his business and his wife having purchased a motor vehicle, leaving roughly a similar amount of money to that found in the house.  The money had not been banked because the appellant owed money to the Inland Revenue Department.

[14]     As for price calculations that were written on a piece of paper found in the appellant’s wallet, the appellant denies any knowledge.  The Crown alleged they related to drugs but counsel contends that they could equally relate to the sale of gold, weighed in grams and sold by the ounce.  In any case, counsel submits that although found in his wallet, the calculations were not proven to have been written in the appellant’s hand. Further, counsel argues that this was characterised by the Crown as evidence of the accused working out how much he could sell imported drugs for and was thus relevant to count two, in respect of which the appellant was acquitted, but irrelevant to count three. 

[15]       Finally, counsel places weight on the fact that no large quantities of snap-lock bags, records of dealing or illicit unaccounted income were found, these being said to be consistent with drug-dealing activity.

[16]     Counsel submits that for the above reasons, the jury should have put the evidence of the cash and the drug calculations aside.  That leaves the discovery of methamphetamine at Len Garlick Place and the scales containing methamphetamine.  The appellant had access to the address and his fingerprints were found on both of these items.  Based on that remaining evidence, as well as a syringe found in the appellant’s vehicle, counsel submits that a reasonable jury could have inferred that the appellant was using the scales to weigh the drug for sale, but could have equally inferred that the scales and drugs did not belong to the appellant or that they were for personal use.

Crown submissions

[17]     The Crown’s submissions, in brief, are that there was sufficient evidence upon which a reasonable jury could infer the appellant had possession for the purpose of supply.

Discussion

[18]     Beginning with the methampetamine found at Len Garlick Place, we reject the appellant’s contention that there was insufficient evidence relating to the occupier of the room and the owner of the jacket from which to infer that the appellant was in possession of the drugs.  The appellant’s Visa Card, travel documents and passport, all important personal items, were found in the same room as the scales and $10,000 cash.  His explanation for the cash included acknowledgement of it as his.  The fact that he kept it at the house is another indication of his association with that property.  Correspondence was found addressed to the appellant at the Len Garlick address.  There was evidence that the appellant had referred to that address as “home.”  The jacket was also the appellant’s size.  It was open to the jury to draw the inference of possession by him of the drug found in the jacket and, in all the circumstances including scales, cash and calculations that possession was for the purpose of supply.  They were entitled to reject his explanation for the cash, just as they would take into account acknowledgement by him that it was his.

[19]     Although the appellant had denied knowledge of the calculations and the evidence as to authorship of the handwriting was inconclusive, the material was in his wallet, found on his person when he was arrested. Counsel’s suggestion that the calculations could have related to the sale of gold is unpersuasive, having regard to all the circumstances and expert evidence given by Detective Sergeant Steedman that the calculations did indeed relate to drug sales. As to counsel’s submission that evidence relevant to count two could not be relevant to count three, we think it plain that that evidence, relating to drug sale prices, was relevant to all counts.

[20]     Finally, counsel’s argument that some items that are often possessed by drug dealers were not found in this particular case cannot be given much weight.  The calculations were clearly records of prices and as such are indicative of dealing.  The evidence of what was found rather than what was not is enough to support the jury’s verdict.

[21]     Counsel has raised many possible alternative inferences consistent with innocence, and has argued that those inferences must be preferred. If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt.  But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough.  The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable.  In light of this reality Counsel’s submissions are unpersuasive.  The circumstantial evidence in this case was entirely adequate to support a verdict of guilty.

Result

[22]     For these reasons the appeal is dismissed.

Solicitors:
Monk & McClymont, Auckland
Crown Law Office, Wellington