The Queen v Ryder

[2007] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

CA333/06
[2007] NZCA 14

THE QUEEN

v

IVAN JOHN RYDER

Hearing:19 February 2007

Court:William Young P, Randerson and Harrison JJ

Counsel:R A A Weir for Appellant

K Raftery for Crown

Judgment:19 February 2007 at 2.15 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       The appellant, Ivan John Ryder, appeals against his conviction in the High Court at Auckland following trial by jury on charges of possession of, first, a precursor substance namely Toluene and, second, an electric hotplate and glassware, both with the intention that they be used in the manufacture of methamphetamine: ss 12A(2)(b) and 12A(2)(a) Misuse of Drugs Act 1975.  He does not appeal against his sentence of 21 months imprisonment imposed on both charges.

[2]       The sole ground of Mr Ryder’s appeal is that the verdicts are unreasonable or cannot be supported having regard to the evidence: s 385(1)(a) Crimes Act 1961.

Facts

[3]       The material facts are not in dispute as follows:

(1)At about 2.26 am on 19 July 2004 the police searched a property at 216 Glengarry Road, Glen Eden, Auckland.  They were acting on a complaint by a third party that another party, Mr Rodney Fuller, who occupied the property, was in the process of or about to carry out an exercise in manufacturing methamphetamine there.  Mr Ryder’s niece, his co-accused, Ms Rachel Duff, was then living in a sleep-out at the property; 

(2)By the time the police arrived Mr Fuller had left the premises.  However, the police saw Mr Ryder and Ms Duff leaving the property in a white Toyota Hiace van.  Officers stopped the van and spoke to Mr Ryder who was the driver and to Ms Duff;

(3)The police conducted a search of the vehicle.  In the rear they located a box.  It contained an electric element-type hotplate, glassware including a larger beaker, a dish and a jar, and a blue plastic jug containing what was later determined to be Toluene;

(4)When spoken to by the police Mr Ryder first denied being at the address.  Later he told another officer that he had gone there to pick up the van;

(5)A search subsequently carried out by the police at 216 Glengarry Road revealed equipment necessary for manufacturing methamphetamine.  Empty packets of certain products suggested that pseudoephedrine had been recently extracted.  Residues consistent with manufacturing methamphetamine were detected.

[4]       Mr Fuller, Mr Ryder and Ms Duff were later arrested and charged with a range of offences.  They were jointly indicted for trial in the High Court at Auckland.  Mr Fuller was the principal offender.  He was found guilty on two counts of manufacturing methamphetamine and two related counts.  Mr Ryder and Ms Duff were jointly found guilty on two charges of possession for the statutory purposes.

[5]       Mr Ryder’s trial counsel did not at any stage apply for an order discharging Mr Ryder on the ground that there was insufficient evidence to place him on trial before a jury: s 347 Crimes Act 1961.

Decision

[6]       In this Court Mr Robert Weir, who appears for Mr Ryder in support of the appeal but did not represent him in the High Court, does not challenge the adequacy of the summing-up by the trial Judge, Keane J, on the two relevant counts.  It is appropriate to record his directions on them:

[77]     The Crown’s case as to Mr Ryder is that the items with which he and Ms Duff are charged jointly were found in a van in his possession. There is evidence that, even though the van may have belonged to Mr Fuller, it had passed to the possession, and perhaps the ownership, at least informally, of Mr Ryder. There was a change of ownership form found in the car which Mr Ryder had completed. There was a traffic offence notice which showed that he had been driving the car two weeks before. It is not disputed that the car had moved to his possession and so he had control of that vehicle and with it the control of its contents.

[78]     Moreover, the Crown says, he was all too conscious of that when  he was spoken to when he got out of the van. His answers, the Crown invites you to conclude, were really designed to deflect the police from any conclusion that he was responsible for what was found in the van. As to Ms Duff, the Crown says, well she may have been the passenger but she cannot deny knowing what was in the box behind her or having played some part in it being there because her fingerprint was found on a glass jar in that box.

[79]     Now if in fact you are satisfied, the Crown says, that they knew what was there, and they had control over it knowingly and intentionally, you can also be satisfied that they did it with the intention that the materials in their possession be kept away from the police but be held for another day, be held for the purposes for which they had been used in the past, and that is to say manufacture. So that essentially is the Crown case against them.

[80]     For Mr Ryder, it is said that the Crown case against him is simply speculative. The only precursor substance to which count 1 can relate is the toluene. That was in a small quantity in an open jug in the box. Could it seriously be suggested, the defence asks, that Mr Ryder intended that to be used at some time in the future? There certainly was no pseudoephedrine.

[81]     As to count 2, the equipment count, well there was a hot plate there and you know from the ESR scientist that hot plates can be used in the manufacture process but the Crown’s case falls over at the most basic level the defence says there. There is no evidence that it was capable of being used. There is no evidence that it worked. If you do not have evidence that it worked, you cannot assume that it worked, and therefore you just discount that, the defence says.

[82]     As to the glassware and the like there, well it was there and it is conceivable that it could be used in manufacture but had it been used in the past? The defence says, if you work through each of the items that were there, none of them were subjected to ESR analysis so you do not know what was in them. You cannot take any safe inference about what else was found there.

[83]     And that essentially is the case for Mr Ryder, that the Crown’s case as to counts 1 and 2 fall short of showing on any basis that, even if the items were in his possession, he had any intention that they be used in the future.

[7]       The law is well settled.  A verdict is only unreasonable or cannot be supported having regard to the evidence if this Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the appellant’s guilt: R v Ramage [1985] 1 NZLR 392 (CA) at 393. Mr Weir’s essential submission is that the jury must have entertained a reasonable doubt as there was no reliable basis upon which it could have been sure that he was in possession of the Toluene and hotplate with the requisite intention that they be used in manufacturing methamphetamine. However, he accepts that it was open to the jury to find that the actus reus of the offences had been committed; namely, that he was in possession. Once that concession is made, then it is simply a question of examining the relevant circumstances to determine whether the undisputed facts provided a sufficient foundation for a jury to draw inferences of guilt. We note that Mr Ryder did not give evidence.

[8]       Mr Weir submits that there was no evidential linkage between the objects found in Mr Ryder’s possession and the seat of the principal offending of manufacturing or of the principal offender, Mr Fuller.  We disagree.  At least four factors were available to the jury to support an inference of a guilty intention.  First, the address from which the van was leaving contained evidence of methamphetamine residue together with materials commonly used for manufacturing methamphetamine.  Second, the hour of Mr Ryder’s departure from the address was unusual.  Third, his departure followed a warning given to Mr Fuller an hour earlier that the police were on their way.  Fourth, a hotplate and Toluene are commonly used in manufacturing methamphetamine.  Together these factors establish a proximity to the seat of the offending and to Mr Fuller which the jury could accept, in the absence of any evidence to the contrary, as providing the necessary foundation for the crimes of possession of the equipment and materials with the requisite intent.

[9]       Mr Weir advances a separate argument relating to the charge of possession of a hotplate.  It is to the effect that there was insufficient evidence adduced at trial to support a finding that the equipment had previously been used in manufacturing methamphetamine.  However, as well as its proximity to the address, there was evidence that the hotplate together with other equipment found in the van were similar in type to items found by the police at the property.  In any event, whether or not they had been used before is beside the point.  When taken in conjunction with the other evidence, particularly the Toluene which is a precursor material for methamphetamine, it was open to the jury to conclude that the hotplate was in Mr Ryder’s possession for the proscribed purpose.

Conclusion

[10]     For these brief reasons we dismiss the appeal.

Solicitors:
Meredith Connell, Auckland