The Queen v Rua (aka Evans) - [2008] NZCA 38

IN THE COURT OF APPEAL OF NEW ZEALAND
CA596/07
[2008] NZCA 38
THE QUEEN
v
JAY RUA (AKA JAMIE EVANS)
Hearing:21 February 2008

Court:Robertson, Randerson and Ronald Young JJ
Counsel:W M Ryan for Appellant

M D Downs for Crown

Judgment:29 February 2008 at 10 am

JUDGMENT OF THE COURT

APPEAL AGAINST CONVICTION DISMISSED.
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]       When the police executed a search warrant at the appellant’s home it had, as police described, all the hallmarks of a methamphetamine laboratory. In the house the police found a two-layered liquid which contained methamphetamine. The appellant was convicted by a jury of manufacturing the methamphetamine, amongst other Misuse of Drugs Act 1975 charges. The appellant’s case on appeal is that the methamphetamine found by the police was not in a useable form and, therefore, he should not have been convicted of manufacturing methamphetamine.
Relevant facts
[2]       Mr Scott Reinhardt, a scientist, gave evidence describing the process by which methamphetamine is produced, which he considered had been used in this case. Mr Reinhardt said the process started with a pseudoephedrine product, such as cold or flu tablets containing pseudoephedrine. The first stage is to separate the pseudoephedrine from the flu tablets. These are dissolved in water and a caustic substance added to the mixture. Then, a solvent such as toluene is added to that liquid and the mixture shaken. The pseudoephedrine rises to the top of the resulting liquid. The solvent is then evaporated, and a pseudoephedrine powder results. This powder is then placed in a reaction flask and iodine and hypophosphorous acid is added. The resulting reaction produces heat and heat is also required to be applied to the mixture. Methamphetamine is then produced in an acidic two-layered liquid.
[3]       At this stage, the methamphetamine is not in a form able to be consumed. To turn the solution into a useable form, a solvent such as toluene must be added to the solution. The methamphetamine base prefers the toluene layer. The toluene is then removed and, finally, a hydrochloride gas is bubbled through the liquid which converts the methamphetamine to methamphetamine hydrochloride, a solid crystalline form, a useable drug, and a salt of methamphetamine.
[4]       In this case, a two-layered liquid, which contained methamphetamine, was found in the appellant’s house. Pseudoephedrine was also present in the liquid, which suggested that the reaction had not yet converted all of the pseudoephedrine to methamphetamine. It is common ground that no methamphetamine powder was found and there was no evidence that methamphetamine was manufactured to a stage where it could be consumed.
The opposing positions
[5]       The appellant’s case can be simply put. The appellant was charged with manufacturing methamphetamine. He submits that “manufacture”, in the context of s 6 of the Misuse of Drugs Act 1975, means “to work into a form of a drug which is useable”. The form of methamphetamine created by the appellant was not useable and he had not, therefore, manufactured methamphetamine.
[6]…

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 Rua (aka Evans)

Details

AGLC: The Queen v Rua (aka Evans) [2008] NZCA 38
Case: [2008] NZCA 38
Decision Date: 29 February 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by the appellant, Jay Rua (also known as Jamie Evans), against his conviction for manufacturing methamphetamine, among other charges under the Misuse of Drugs Act 1975. The appeal was against his conviction, not the sentence. During a police search of Rua's home, they found a two-layered liquid containing methamphetamine, indicating a methamphetamine laboratory. Rua argued on appeal that the methamphetamine found was not in a usable form and, therefore, he should not have been convicted of manufacturing methamphetamine.

The legal issue before the Court was whether the term "manufacture" in the Misuse of Drugs Act 1975 required the creation of a methamphetamine in a usable form or if the creation of the drug in any form was sufficient to constitute manufacturing. Rua argued that "manufacture" implied the creation of a usable drug, while the Crown contended that the creation of the drug in any form was enough to satisfy the statutory requirement.

The Court considered the statutory language and the purpose of the Misuse of Drugs Act 1975. The Court noted that there was no statutory definition of "manufacture" in the Act, but the words "produce" and "manufacture" were to be read as complementary and to broadly cover the process of creation of controlled drugs. The Court rejected Rua's argument that "manufacture" required the creation of a usable drug, stating that such an interpretation would inappropriately narrow the comprehensive statutory provision prohibiting the creation of controlled substances. The Court concluded that the creation of methamphetamine in any form was sufficient to constitute manufacturing under the Act.

The Court of Appeal dismissed the appeal against conviction. The creation of methamphetamine by Rua, even if not in a usable form, was sufficient to constitute manufacturing under s 6(1)(b) of the Misuse of Drugs Act 1975. The Court found that the jury was entitled to find Rua guilty of manufacturing methamphetamine.

Orders