The Queen v Lenaghan - [2008] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND
CA54/2008
[2008] NZCA 123
THE QUEEN
v
KEVIN ANTHONY LENAGHAN
Hearing:24 April 2008

Court:William Young P, Chisholm and Ronald Young JJ
Counsel:M E Goodwin and A Malik for Appellant

M D Downs for Crown

Judgment:9 May 2008 at 3pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe sentence of home detention imposed upon the appellant is now reactivated but lest there be need for any further orders in that regard, we reserve leave to the parties to apply.

____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1] The appellant was found guilty by a jury of possessing the precursor substance hypophosphorous acid with the intention that it be used for the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act 1975. Hypophosphorous acid is used in the manufacture of methamphetamine. He was subsequently sentenced to home detention, a sentence which was suspended by Robertson J on 20 February 2008 pending determination of this appeal.
[2] His appeal against conviction raises two issues:
(a)Was there an adequate evidential basis for the jury’s conclusion that the appellant had possession of hypophosphorous acid?
(b)Were the Judge’s directions as to intention adequate?

Before we turn to discuss those issues, it necessary to discuss briefly the factual background.
The factual background
[3] The appellant, using the name Kevin Sarich, telephoned Asia Pacific Specialty Chemicals Ltd (“APS Chemicals”), a company which supplies chemicals, and ordered 2.5 litres of hypophosphorous acid. He subsequently paid in cash the purchase price of $618.75. When he returned to pick up his order on 28 October 2005, he received a polystyrene box that was labelled as containing hypophosphorous acid. He was then taken into custody by the police who had been tipped off by APS Chemicals. The box was returned by the police to the company unopened.
[4] The appellant initially told Constable Steven Williams that he had purchased the acid to strip paint from a car that he was intending to restore and that he had done so on the advice of some people he named. One of these people was interviewed by the police that day and he denied having given the alleged advice. Another police officer spoke briefly to the appellant. In the course of this discussion the appellant volunteered that he had intended to sell the hypophosphorous acid and referred to the possibility of a “big profit”. When asked if he had the right buyer, the appellant replied, “I don’t know, you know what druggies are like”. At a subsequent interview the appellant told Constable Williams that he was going to on-sell the solvent to “Kelvin” for as much as $2,000 per litre. When he was asked what he thought the acid would be used for, he answered, “Well all I can say is that, you know that my speculation is that it could well be used for drug manufacture”. He went onto say that the acid was “probably going…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Lenaghan

Details

AGLC: The Queen v Lenaghan [2008] NZCA 123
Case: [2008] NZCA 123
Decision Date: 9 May 2008

CaseChat Overview and Summary

The appeal against the conviction and sentence of Kevin Anthony Lenaghan was heard by the Court of Appeal of New Zealand. Lenaghan had been found guilty of possessing hypophosphorous acid with the intent for it to be used in the manufacture of methamphetamine. His appeal raised two issues: the adequacy of the evidential basis for the jury's conclusion on possession, and whether the judge's directions regarding intention were sufficient. The factual background revealed that Lenaghan had ordered hypophosphorous acid under a false name and had intended to sell it, possibly for drug manufacturing. The Crown did not present evidence of analysis of the substance in question, relying instead on the labelling and the nature of the transaction.

The court found that there was an adequate evidential basis for the jury's conclusion on possession. Although there was no direct evidence of the substance's identity, the chain of business transactions and the labelling of the box provided circumstantial evidence that the substance was indeed hypophosphorous acid. The court compared this to situations where business systems inspire confidence in the accuracy of labels and contents, such as petrol pumps and post office systems. The court held that the judge's summing up to the jury was sufficient, and that the jury was adequately directed on the issue of intention. The appeal was dismissed, and Lenaghan's sentence of home detention was reactivated.

Orders