The Queen v Su'a and Mankelow

[2007] NZCA 136

IN THE COURT OF APPEAL OF NEW ZEALAND

CA442/06
CA443/06
[2007] NZCA 136

THE QUEEN

v

PALEPOI SU'A
BRIAN JOHNSON MANKELOW

Hearing:16 April 2007

Court:William Young P, Potter and Fogarty JJ

Counsel:N C Wintour for B J Mankelow

N L Faigan for P Su'a
M F Laracy for the Crown

Judgment:19 April 2007 at 10 am

JUDGMENT OF THE COURT

A        The appeal by Mr Mankelow is dismissed.

B        The appeal by Mr Su’a is allowed. 

CThe convictions of Mr Su’a (other than for possession of LSD) are quashed and we direct that judgments and verdicts of acquittal be entered.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       As a result of a warrantless police search of premises associated with John Gilpin at 2 Helga Crescent, Te Atatu on 18 November 2004, Mr Gilpin and two other men, Palepoi Su’a and Brian Mankelow were charged with offences associated with the manufacture of methamphetamine.  Mr Gilpin pleaded guilty to the charges laid against him and Messrs Su’a and Mankelow were prosecuted on counts of manufacturing methamphetamine, possession of associated equipment and precursor substances and possession of methamphetamine.  Mr Su’a also faced a charge of possession of LSD.  In a pre-trial ruling, Ellen France J excluded the key evidence associated with what the police found at 2 Helga Crescent, but this ruling was reversed on appeal to this Court: see R v Su’a and another CA365/05 CA366/05 27 November 2005.  Messrs Su’a and Mankelow subsequently stood trial before Keane J and were found guilty on all counts.  They now appeal against conviction.

[2]       Their appeals give rise to three questions:

(a)Should we revisit the evidential ruling?

(b)Was there an adequate evidential basis for the verdicts of guilty in relation to Mr Mankelow?

(c)Was there an adequate evidential basis for the verdicts of guilty in relation to Mr Su’a?

Before we discuss these questions, it is necessary to say something about the factual background.

Factual background

[3]       It is common ground that on or around 18 November 2004, Mr Gilpin manufactured methamphetamine in a partitioned-off section of the garage at 2 Helga Crescent, Te Atatu.  On the defence case, this manufacturing exercise occurred on the night of 17 November 2004 and finished the following morning.  On the Crown case, the manufacturing operation finished somewhat later, at a time reasonably proximate to the arrival of the police at the scene just after 3.00pm of 18 November.  A search of the rear of the garage revealed 25 grams of methamphetamine, chemicals and equipment associated with its manufacture and $18,000 in cash.  There were indications that there had been something of a spill or perhaps a flare up in the course of a manufacturing operation.

[4]       When the police officers arrived at the residence at 2 Helga Crescent, they saw Palepoi Su’a and another man outside the garage.  Constable Christopher Stewart searched Mr Su’a and found cannabis and LSD on him.  He also located in the wallet of Mr Su’a what appeared to be a shopping list (in handwriting which was later attributed to Mr Su’a) which listed “brown filters”, “sticks”, “paper towel”, “spirit of salt” and “caustic”, all items associated with the manufacture of methamphetamine.  The case against Mr Su’a very much came down to his possession of this list and his presence at 2 Helga Crescent when the police arrived. His explanation at interview for his presence was that he had stopped off en route from Takapuna to his home in Avondale to have a cup of coffee and to allow the traffic to “die down a bit”.  He admitted being in the front section of the garage but denied having gone into the rear partitioned-off section.

[5]       Sergeant David Jones entered the back section of the garage at around 3.15pm.  On his evidence, he immediately noticed “a very strong chemical smell, the smell of burning, and a very strong heat coming from the garage”.  Inside the rear (ie partitioned-off) section of the garage he found Mr Mankelow.  He was seated in the middle of what was obviously a methamphetamine laboratory.  A plastic bag containing the 25 grams of methamphetamine to which we have referred was on a table in front of him.  Sergeant Jones and another police officer required Mr Mankelow to leave the garage and Sergeant Jones then arranged for the police clandestine laboratory team and the fire service to be called.

[6]       Sometime later (probably a little after 3.30pm) Dr Ann Coxon, an ESR scientist, and Constable Joel Stewart entered the rear of the garage.  Both were wearing breathing apparatus.  They spent approximately 20-25 minutes in the garage before leaving.  They then removed their breathing apparatus and briefed other members of the official party on what they had seen.  They then returned to the garage without breathing apparatus.  Dr Coxon noted at this time that there was no solvent smell.  The drift of her evidence suggests that she had no particular sense of heat.  She noted that the garage was adequately ventilated.

[7]       Mr Mankelow’s fingerprints were detected on four of the pieces of equipment (including a distiller which contained a residue of methamphetamine) which were located in the rear section of the garage.  When interviewed by Constable Fillery, Mr Mankelow said comparatively little and gave no explanation for his presence in the garage.  Mr Mankelow’s clothes were not forensically examined (or if they were, there was no evidence of the results), a point which his counsel (Mr Wintour) stressed, given that there were indications in the garage of a splash or spill of chemicals.  As well, the police apparently did not search his house.

[8]       At trial Mr Mankelow gave evidence.  He claimed that he had long been aware of, but opposed to, Mr Gilpin’s drug use.  He had arrived at 2 Helga Crescent after lunch (around 1.00pm-2.00pm) to pick Mr Gilpin up for work (something which he had previously arranged with Mr Gilpin).  Mr Gilpin took him into the garage where he found two or three other people.  He decided to wait there until Mr Gilpin was finished with the other people and then take him to work.  He had been required to move items which were in the garage in order to create sufficient space to sit down and perhaps made room on a dresser for his keys, wallet and inhaler.  While he recognised (or at least had his suspicions) as to the implications of what was in the garage, he had no involvement in manufacturing methamphetamine.  His case was supported by the evidence of Mr Gilpin (which largely corroborated the account given by Mr Mankelow) and by other witnesses who corroborated his evidence as to his opposition to Mr Gilpin’s involvement with methamphetamine.

[9]       On the way the counts were drafted and the Crown case was run, the prosecution against Messrs Su’a and Mankelow depended on the Crown establishing that each had been directly involved in the methamphetamine manufacturing exercise which had taken place on or about 18 November 2004.

Should we revisit the evidential ruling?

[10]     The primary ground upon which this Court upheld the admissibility of the disputed evidence was that Messrs Mankelow and Su’a lacked standing to challenge the search, a ground which can now be seen to have been unsound given the approach taken in R v Williams CA372/05 7 March 2007. 

[11]     Counsel for Mr Su’a invited us to reconsider the earlier judgment in light of Williams.  But in the earlier judgment, this Court held that in any event the search was lawful (under s 18 of the Misuse of Drugs Act 1975) and the results were admissible, irrespective of the standing issue.  In those circumstances we see no need to revisit the evidential ruling.

Was there an adequate evidential basis for the verdicts of guilty in relation to Mr Mankelow?

[12]     The case against Mr Mankelow involved a number of evaluative issues for the jury, particularly:

(a)Whether to accept the evidence of Sergeant Jones;

(b)Whether Mr Mankelow’s explanation for his fingerprints was credible (in the sense that there was a reasonable possibility that it was true); and

(c)Whether the explanation given by Messrs Mankelow and Mr Gilpin for the former’s presence in the laboratory was credible (in the sense that there was a reasonable possibility that it was true).

[13]     The defence challenged the evidence of Sergeant Jones on the basis that it was inconsistent with that of Dr Coxon.  Given the time which elapsed between Sergeant Jones’ entry into the garage and Dr Coxon going in without breathing apparatus (ie the second time), it was open to the jury to accept the evidence of Sergeant Jones.  If the jury did so, this necessarily cast a shadow over the defence. The later the manufacturing operation ceased, the less credible became Mr Mankelow’s explanation.  Why would he (with his claimed opposition to Mr Gilpin’s involvement with methamphetamine) sit in a garage which was reeking of methamphetamine manufacture?  Why would he take health risks which Sergeant Jones was not prepared to take?  As well, if he came in on the tail end of the operation, his explanation for how his fingerprints came to be on four pieces of equipment becomes forced.

[14]     That explanation was a little forced anyway.  Certainly two of the items of equipment on which his fingerprints were found were located near where he was sitting.  But a glass measuring cylinder was found on a chest of drawers some distance away (albeit in reasonable proximity to where he placed keys, his wallet and an inhaler) and, more importantly, a glass measuring jug was located underneath a chair across the room from where Mr Mankelow had been sitting.  In his evidence at trial, Mr Mankelow struggled to explain how his fingerprints came to be on this last item.

[15]     Also slightly difficult to understand is why (given the claimed history of Mr Mankelow’s opposition to his involvement with methamphetamine), Mr Gilpin arranged for Mr Mankelow to come to pick him up for work at a time which coincided with the end of a methamphetamine manufacturing operation and why he took Mr Mankelow into the partitioned off section of the garage.

[16]     All in all, we are satisfied that it was open to the jury to reach verdicts of guilty against Mr Mankelow.

Was there an adequate evidential basis for the verdicts of guilty in relation to Mr Su’a?

[17]     Ms Laracy for the Crown accepted that the position was different with Mr Su’a. 

[18]     It was, of course, well open to the jury to conclude the list found in his wallet was of items intended to be used in the manufacture of methamphetamine.  His apparent role in relation to the acquisition of such items (which may have been for future use) did not establish that he had an actual role in the manufacturing operation which had just concluded and which was the focus of the Crown case.  So we conclude that Ms Laracy’s concession in relation to Mr Su’a was appropriate.

Result

[19]     The appeal by Mr Mankelow is dismissed.

[20]     The appeal by Mr Su’a is allowed.  The convictions of Mr Su’a (other than for possession of LSD) are quashed and we direct that judgments and verdicts of acquittal be entered.

Solicitors:

Crown Law Office, Wellington