The Queen v May

[2008] NZCA 221

IN THE COURT OF APPEAL OF NEW ZEALAND

CA645/07
[2008] NZCA 221

THE QUEEN

v

PAUL VINCENT MAY

Hearing:16 and 19 June 2008

Court:Chambers, Randerson and Winkelmann JJ

Counsel:L B Cordwell for Appellant

A R Burns for Crown

Judgment:9 July 2008 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Alleged methamphetamine manufacture

[1]       In the early hours of 4 November 2005, the Armed Offenders Squad executed a search warrant at a residential property in Don Buck Road, Massey, Auckland.  The police believed the house was being used as a meth lab (that is, as a house in which methamphetamine was being manufactured).  For this reason, the squad proceeded with caution.  They smashed a window and ordered all the occupants outside.  Paul May, the appellant, was the second to emerge.  Detective Richard Cox, having cautioned Mr May, questioned him about when methamphetamine had last been made inside.  He wanted this information so as to evaluate the risk to squad members as they entered the property.  Mr May replied, “I haven’t cooked P here.”  He repeated that on two further occasions, both times including “here” in the answer.

[2]       A little later, Detective Constable Ian Chapman also spoke to Mr May.  Mr May identified his bedroom and said he had stayed in it “most nights” since he had arrived at the address about six weeks before.  In that bedroom, the police found two clear glass baking dishes, a pH meter, a buffer bottle, a steam distiller, a reaction flask, chemicals including methylene chloride, sodium hydroxide, hydrochloric acid, and acetone, and two small point bags containing methamphetamine.  Traces of methamphetamine were found in the various articles, all of which are commonly used in the methamphetamine‑manufacturing process.  The police fingerprint expert found Mr May’s fingerprints on one of the glass dishes and on the steam distiller. 

[3]       The police charged Mr May with five offences, of which the most serious was manufacturing the class A controlled drug methamphetamine.  Mr May pleaded not guilty but, following trial by jury, was convicted on all five counts.  He now appeals against those convictions. 

Issue on the appeal

[4]       There is one issue on the appeal: could the jury have been reasonably satisfied beyond reasonable doubt that Mr May was guilty on all counts?  There is no dispute about the applicable law.  The statutory provision under which the appeal is brought is s 385(1)(a) of the Crimes Act 1961, as interpreted by this court in R v Munro [2008] 2 NZLR 87 and by the Supreme Court in R v Owen [2008] 2 NZLR 37.

Could the jury have been reasonably satisfied beyond reasonable doubt that Mr May was guilty on all counts?

[5]       Mr Cordwell, for Mr May, divided the five counts into two groups.  Group 1 comprised all counts other than the manufacturing count.  Group 2 was the remaining count, the manufacturing charge.  We too shall deal with the counts in those groups. 

The charges other than manufacturing

[6]       These four charges all related to what the police found in Mr May’s bedroom when they entered the Don Buck Road house on 4 November 2005.  The four charges were:

·Count 2 – having in his possession the class A controlled drug methamphetamine.  This referred to the methamphetamine found in the point bags on Mr May’s bed. 

·Count 3 – having in his possession equipment capable of being used in, or for, the manufacture of methamphetamine, with the intention that the equipment be used for that purpose.  This charge related to the baking dishes, water distiller, home-made filtration devices, the flask, and the pH meter found in the bedroom.

·Count 4 – having in his possession precursor substances, intending they be used in the manufacture of methamphetamine.  This referred to the hydrochloric acid and the acetone. 

·Count 5 – having in his possession materials capable of being used in, or for, the manufacture of methamphetamine, with the intention they be used for that purpose.  This count related to the sodium hydroxide and methylene chloride. 

[7]       Mr May’s defence to these counts was that the various items were not his. 

[8]       The Crown relied on Mr May’s admission that the room in which the items were found had been his bedroom for the past six weeks.  Further, the police found in the room, on a tallboy, passport photographs of Mr May.  The bagged methamphetamine was found on his bed.  The other items were either under his bed or in close proximity to it.  The Crown also relied on the fact that Mr May’s fingerprints were found on two of the items.  There was clear evidence that the equipment had been used for the manufacture of methamphetamine, as traces of methamphetamine and psuedoephedrine were found on various items. 

[9]       The Crown also relied on Mr May’s thrice‑repeated mantra “I haven’t cooked P here.”  The addition of the “here” may be significant.  It enabled an inference to be drawn that, while Mr May denied manufacturing at Don Buck Road, he implicitly acknowledged he might have manufactured elsewhere.  A more normal response to the question “when did you last cook P?” would be, one would have thought, something like “I’ve never cooked it.  What are you talking about?”  That answer added to the likelihood that the drug‑related articles in the house were Mr May’s. 

[10]     Mr May did not give evidence.  He was not able, therefore, to refute directly Detective Constable Chapman’s evidence as to what Mr May had told him.  The defence did call one witness, however.  That was Sheena Bruce, who had been living at the relevant time in a unit behind the house in which Mr May had been residing.  Her evidence‑in‑chief was to the effect that the room in which the drug‑related articles were found was just a junk room or a storeroom, not really a bedroom at all.  She said that she had thought Mr May had been sleeping on a couch in the lounge.  But, under cross-examination, it turned out she did not know where Mr May had been sleeping.  She had never seen any methamphetamine‑manufacturing items in the room.  Further, her description of the room as a junk room or a storeroom was obviously belied by the photographs the police took.  While some items which may not have belonged to Mr May were in the room, the room clearly presented as a functioning bedroom for someone.  The other items (which may not have been Mr May’s) were not in the same close proximity to the bed as the drug paraphernalia were. 

[11]     There was clearly evidence from which the jury could have been reasonably satisfied that the items in question were Mr May’s.  Once the jury were satisfied that the items were Mr May’s, it was clearly open to them to infer, in all the circumstances, that he had the items for the purpose of manufacturing methamphetamine.  The challenge to the verdicts on these charges must fail.

The manufacturing charge

[12]     The Crown charged that Mr May “between 1 September 2005 and 4 November 2005, at Auckland, manufactured the class A controlled drug methamphetamine”.  The Crown had no direct evidence of Mr May’s alleged manufacturing: the case was entirely circumstantial.  The Crown relied on inferences to be drawn from the fact that, in his bedroom, were found drug‑manufacturing equipment (with residues), precursor substances, and the end‑product in snap lock bags.  The Crown could prove, however, neither date of manufacture nor place of manufacture.  The Crown invited the jury to infer the manufacture was recent (ie within the last two months) from the fact that residues were found and from the fact that methamphetamine was found on the bed.  The Crown could not point to any place of manufacture, but relied on the ease with which the meth lab paraphernalia could be transported.

[13]     The defence did not challenge that the equipment had been used by someone somewhere and sometime to manufacture methamphetamine.  But was that “someone” Mr May?

[14]     Mr Cordwell approached the matter with the jury in this way.  His first line of defence was, of course, that the Crown had not proved the drug paraphernalia belonged to Mr May.  If it was a reasonable possibility that the drug paraphernalia were not Mr May’s, then not only did Mr May have to be acquitted on the group 1 charges but also he would have had to be acquitted on the manufacturing charge: that the equipment was his was fundamental to the manufacturing charge.  We know, of course, that the jury were satisfied of Mr May’s guilt on the group 1 charges, and we have already found their decision in that regard to be unimpeachable on appeal.  But that still left other strings to the defence bow on the manufacturing charge. 

[15]     The second line of defence was that the Crown had not proved that manufacturing took place between 1 September 2005 and 4 November 2005.  It could have been earlier, said Mr Cordwell.  In particular, Mr Cordwell relied on the evidence of Wayne Gatenby, a chemist employed by Environment Science and Research.  Mr Gatenby confirmed that there was no way he could determine from analysis of the residues as to when manufacturing had taken place.  It was entirely possible that the residues could have been deposited “a significant period” before.

[16]     Similarly, Mr Cordwell pointed to his cross-examination of the Crown’s fingerprint expert, Neville Morris.  Mr Morris accepted that he could not age the fingerprints he had found.  Of course, the fingerprint evidence, so far as the manufacturing charge was concerned, was not decisive.  Mr May’s fingerprints could have been placed on the articles after he took delivery of them from the manufacturer. 

[17] The third line of defence was that the Crown had not proved the manufacturing took place at Don Buck Road. There can be no dispute about that: Cooper J, the trial judge, in his sentencing notes, specifically remarked that “there was no evidence upon which it could be confidently said that the manufacturing had actually taken place in [Mr May’s] bedroom or indeed at the property”: HC AK CRI2006‑004‑001367 27 November 2007 at [17]. The Crown did not pitch its case, however, on the basis that Don Buck Road was the place of manufacture. As Mr Burns said, the methamphetamine could have been manufactured anywhere. All that mattered was whether Mr May had been party to that manufacture. While that is true, there is something in Mr Cordwell’s retort that, if the manufacture did not take place at Don Buck Road, then Mr May’s potential participation in it becomes much more tenuous.

[18]     We confess to having found this charge more difficult.  In the end, however, we have concluded that the Crown had proved sufficient to enable the guilty verdict to be upheld.  The Crown had proved beyond reasonable doubt that the drug paraphernalia were Mr May’s.  They had proved he had it for the purpose of manufacturing methamphetamine.  There was no dispute that the equipment had already been used for manufacturing methamphetamine.  And, what is more, methamphetamine was found on Mr May’s bed.  Mr May’s fingerprints were on some of the articles which would have been used for manufacturing.  Mr May had chosen to give no explanation as to how the equipment and drugs ended up in his room, either to the police at the time or at trial.  Indeed, his only utterance to the police - the thrice‑repeated “I haven’t cooked P here” - could be interpreted as an admission that he had indeed cooked elsewhere. 

[19]     The applicable principle in cases of this kind was stated long ago by Abbott CJ in R v Burdett (1820) 4 B & Ald 95 at 161; 106 ER 873 at 898:

No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends?  

[20]     The logic underlying these remarks is represented in New Zealand by the line of cases of which Trompert v Police [1985] 1 NZLR 357 (CA) is the best and most authoritative illustration. Further, as this court has held now on at least two occasions, the logic remains available to criminal courts despite the enactment of the New Zealand Bill of Rights Act 1990: see R v Gunthorp [2003] 2 NZLR 433 at [142]‑[143] and R v Haig (2006) 22 CRNZ 814 at [101].  There was sufficient evidence here to justify an inference, “in the absence of explanation”, that Mr May had manufactured methamphetamine in the recent past. 

[21]     The problem with Mr Cordwell’s thesis is that there was not a shred of evidence to support it.  This was a matter on which it was easily open to Mr May to provide an alternative exculpatory explanation, if there was one.  He could have explained how it was the drugs paraphernalia came to be in his bedroom.  He could have explained how his fingerprints came to be on some of the items.  If he had been given the equipment after someone else had been using it for manufacture, he could have explained that.  In the absence of any evidence providing such explanation, the jury were entitled to draw the natural inference that the current possessor of the equipment and drugs, a man they had found had the equipment for the purpose of manufacture, was also the person responsible for the manufacture which had undoubtedly taken place. 

[22]     In reaching this conclusion, we have not overlooked an appellate authority on which Mr Cordwell relied, R v Hughes CA338/97 20 November 1997. (The case is partially reported at [1998] 1 NZLR 409, but the relevant part of the judgment for current purposes has not been reported in the NZLRs.) Mr Hughes was involved in a road accident. The police attended the scene and found in his vehicle a morphine home‑bake kit. Mr Hughes’s fingerprints were on a seal around a funnel and on a caustic soda container. A flagon of brown liquid in the car was found to contain 3.7 grams of morphine. He was charged with manufacturing morphine. Mr Hughes did not make any statement to the police. Nor did he give evidence at trial. He was convicted.

[23]     He appealed against his conviction on the same grounds that Mr May has appealed his manufacturing conviction.  This court thought the circumstances were suspicious, to say the least, “and no doubt would have sufficed to convict the appellant on lesser charges”.  But the court did not think Mr Hughes’s possession of the equipment was sufficient to enable the jury to draw, beyond reasonable doubt, the inference that he was guilty of the manufacture.  This court considered that the evidence was equally consistent with the appellant simply transporting the kit somewhere, possibly for disposal.  His print on the airtight seal around the neck of the funnel could have been placed there at the time the equipment was dismantled, rather than at the time of the equipment’s assembly.  The court allowed the appeal and entered an acquittal.

[24]     We think, however, Hughes can be distinguished.  In Hughes, an explanation, supported by evidence, was provided by the defence.  The defence called evidence from the site manager of a recycling station who said that Mr Hughes had approached him earlier in the year to ask if he could dump hazardous waste at the station.  A second witness gave evidence of a telephone call she had had with Mr Hughes shortly before the accident.  In that, he had asked her if the Hikurangi dump would be a good place to dispose of hazardous rubbish.  She said that, when she arrived at the accident scene, Mr Hughes had told her he had been going to dump a home‑bake kit.  There was also evidence which suggested that the kit had been stored outdoors for sometime; vegetation was found on the lid of the main container.

[25]     It was the defence evidence in Hughes which enabled the Trompert inference to be displaced.  There was evidence to support the defence thesis that Mr Hughes was (or might have been) in the process of disposing of a home‑bake kit which he had found or been given.  That is to be contrasted with the current case, where there was no evidential underpinning for counsel’s alternative explanation.  In truth, that explanation, because of the absence of evidence, was no more than speculation.

[26]     For these reasons, the challenge to this verdict must also fail.

[27]     We dismiss the appeal. 

Solicitors:
Crown Law Office, Wellington