The Queen v Maihi

[2007] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND

CA244/06

[2007] NZCA 44

THE QUEEN

v

WALTER MAIHI

Hearing:15 February 2007

Court:Arnold, Panckhurst and Priestley JJ

Counsel:R Garbett for Appellant

P K Feltham for Crown

Judgment:6 March 2007 at 2.45 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       The appellant was convicted at a jury trial before Lang J on one count of possession of a Class A controlled drug (methamphetamine) for supply, one count of possession of ammunition without lawful, proper and sufficient purpose and one count of unlawful possession of a pistol (a sawn-off shotgun).  The amount of methamphetamine involved was 1.58 grams.  The appellant was sentenced to a total of three years imprisonment.

[2]       The appellant appeals against his conviction on the possession for supply count only.  Although two grounds were set out in the notice of appeal, only one was pursued, namely that the verdict cannot be supported having regard to the evidence. 

Background

[3]       The Police executed a search warrant at an address where the appellant lived with his 15 year old daughter.  Besides the ammunition and firearm, the following items were found at various locations in the house:

(a)One gram of methamphetamine in a ziplock plastic bag, three small plastic ziplock bags containing traces of methamphetamine and a bag containing a small amount of cannabis, all in a bag inside one of the appellant’s shoes in a hallway closet;

(b)Two small plastic ziplock bags containing methamphetamine crystals weighing 47 and 11 milligrams respectively and some small plastic ziplock bags in a pouch in the hallway closet.  The small ziplock bags were of the sort used commonly as point bags;

(c)Two sets of scales, one electronic;

(d)A radio scanner;

(e)A broken glass pipe of the type commonly used for smoking methamphetamine, found beside the bed in the appellant’s bedroom;

(f)A silver implement that could be used to package point bags or for smoking methamphetamine;

(g)A plastic bag containing 16.4 grams of white powder suitable for use as a cutting agent.

[4]       In evidence the appellant said that the pipe did not belong to him but that he took responsibility for it.  He would not say who had given it to him but accepted that he had used it to smoke methamphetamine.  The appellant denied any knowledge of the other methamphetamine.   He said that the white powder was tobacco-curing powder which he had had for about five years.  He said that he had found the silver implement when tidying his house and did not know what it was used for.  The electronic scales he had acquired when he bought a box of assorted items at an auction.  The appellant said that many people visited his house, and some of them must have left or stored items there.  This evidence was generally, but not entirely, consistent with what the appellant told the police initially.

Discussion

[5]       Mr Garbett’s submission on behalf of the appellant was that, while the evidence raised “a significant level of suspicion”, it fell short of proving the case against the appellant.  This was  because it did not exclude the reasonable possibility that the appellant’s claim that the methamphetamine was for his personal use was correct. 

[6]       The test as to whether a verdict is unreasonable or cannot be supported having regard to the evidence is whether the Court considers that a jury acting reasonably must have entertained a reasonable doubt as to guilt.  It is not sufficient that an appellate court simply disagrees with the jury’s verdict. (See R v Ramage [1985] 1 NZLR 392 at 393 (CA)).

[7]       Many of the items seized by the Police were items used by persons involved in the supply of methamphetamine at street level.  These items included the gram bag, the point bags, the electronic scales, the silver implement and the powder capable of being used as a cutting agent.  The Crown invited the jury to draw an inference, on the basis of drugs and other items found in the appellant’s house, that he possessed methamphetamine for the purpose of supply.  The appellant gave evidence in which he sought to explain these items and claimed that the methamphetamine of which he was aware was for personal use and not for supply.

[8]       However, the jury disbelieved his explanation.  They were entitled to do so and to conclude on the evidence that the appellant possessed the drugs for the purpose of supply.  This was quintessentially a jury issue. 

[9]       The effect of Mr Garbett’s argument is to undermine the proper role of the jury.  In cases where accused persons found in possession of items used for the supply of drugs gave evidence that they did not know that the items were in their possession or that they had been acquired for legitimate reasons, juries would not be entitled to reject their evidence and convict.  In other words, in such circumstances a jury must, if Mr Garbett is correct, be left with a reasonable doubt. 

[10]     The argument is untenable.  In such a case it is open to the jury to reject the accused’s evidence and convict.  That is the jury’s function.  Accordingly, we consider that there was sufficient evidence on which the jury could properly convict in the present case.

Decision

[11]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington