The Queen v Y

[2006] NZHC 346

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-004-18740

THE QUEEN

v

Y

Appearances: H Lawry for the Crown

P Chambers for the Accused

Judgment:      6 April 2006

ORAL DECISION OF PRIESTLEY J ON 347 APPLICATION

Counsel:

H Lawry, Crown Solicitor, PO Box 2213, Auckland

P Chambers, P O Box 106 414, Auckland

R V Y HC AK CRI 2005-004-18740  6 April 2006

[1]      There are two applications before me.  One was a heralded application by Mr

Chambers for a discharge under s347(3) in respect of count three of the indictment.

[2]      Mr Lawry realistically accepts if he is not allowed to amend count three the s347(3) application is irresistible

[3]      Mr Lawry for his part seeks to amend count three by deleting the words

“caustic soda” and substituting the words “a caustic solution”.

[4]      Relevant to this amendment application is s335 which provides:

335     Variance and amendment

(1)       If  on  the  trial  of  an  indictment  there  appears  to  be  a  variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.

(2)If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.

[5]      I construe ss2 as requiring me to amend the indictment in the absence of a perception by me that the defence has in some way been mislead or prejudiced.

[6]      The count has at its heart the discovery of an unusual looking home-made contraption comprising a domestic plastic bottle, a plastic syringe, and some tubing, which is photographed in photograph nine of Crown exhibit 2.

[7]      The equipment itself could well have been the subject of a charge under s12A(2)(a) of the Misuse of Drugs Act 1975.   Instead the Crown has chosen to concentrate on the material discovered inside the contraption subsequently analysed as a caustic solution with a pH level of 14.

[8]      Mr  Chambers  quite  properly  has  pointed  to  evidence  from  Detective Constable Franklin where he appears himself to have assessed the contraption as a hydrochloride generator.

[9]      The Crown, however, relies on the evidence of the ESR scientist Ms A W Meyn who, at page 42 of the notes, analysed the contents as a caustic liquid.  She opined that such a liquid could be made by adding to water some caustic substance such as caustic soda or sodium hydroxide.

[10]     She also in evidence-in-chief (p45) when describing the methamphetamine manufacturing  process  gave  unchallenged  evidence  that  this  particular  caustic solution would have been suitable in the manufacturing process at either one of two stages.  In cross-examination that suitability was re-emphasised where she referred to the pH level in the context of a caustic solution between 12 and 14 being required for the solution to be successfully deployed in the methamphetamine manufacture process.

[11]     Mr  Chambers  accepts  that  part  of  his  submissions  relate  to  the  whole question of the accused’s possession (which was disputed).   Mr Chambers  also accepts, and properly so in my view, that he cannot point to any specific prejudice or misleading in respect of this sought amendment.   That is unsurprising since the central issue of this trial is the contest as to whether first the accused was in possession of the various substances referred to in the three counts, and secondly whether he had the requisite intention either to supply (count one) or to use the substances specified in counts two and three for the production or manufacture of a controlled drug.

[12]     I also observe that the analysis of relevant substances was attached to Ms Meyn’s hand-out depositions brief.   In that brief the contents of the contraption clearly were specified as “caustic liquid, no controlled drugs”.

[13]     That being the case I intend to exercise the power (in respect of which I have little discretion) under s335(2) and permit count three of the indictment to be amended by the deletion of the words “caustic soda” and the substitution of the words “a caustic solution”.

[14]     This decision, for the reasons I have given, disposes with both applications before me.

…………………………

Priestley J