The Queen v Yorston

[2008] NZCA 285

IN THE COURT OF APPEAL OF NEW ZEALAND

CA260/2008
[2008] NZCA 285

THE QUEEN

v

ALLAN MAGNUS YORSTON

Hearing:24 July 2008

Court:Baragwanath, Chisholm and Heath JJ

Counsel:S Lance for Appellant

P K Feltham for Crown

Judgment:7 August 2008 at 10am

JUDGMENT OF THE COURT

A        APPEAL ALLOWED.

BThe convictions are quashed.  The proceedings are to be permanently stayed.

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REASONS OF THE COURT

(Given by Chisholm J)

[1]        At a re-trial before Judge Bouchier and a jury in the Auckland District Court the appellant was found guilty on nine counts arising from the possession of precursor substances, equipment and material.  An earlier trial had resulted in a hung jury.  The appellant was sentenced to five months imprisonment, which he has served. 

[2]        This is an appeal against conviction on the grounds that the Judge failed to adequately direct the jury in relation to:

(a)The concept of possession;

(b)Whether there had to be a usable quantity of precursor substances; and

(c)Fingerprint evidence.

It is submitted that in all or any of those respects the inadequate direction resulted in a miscarriage of justice.

Background

[3]        Between 4 July 2003 and 15 July 2004 a friend of the appellant was the tenant of an Auckland flat.  The tenancy was terminated on 15 July 2004 and a few days later the landlords entered the flat and changed the locks.  During the period of the tenancy the appellant paid social visits to the flat, with the evidence indicating that his last visit was four or five weeks before the tenancy was terminated.

[4]        When the landlords cleaned up the flat, which had been left in a mess, they located a variety of chemicals and associated equipment, and called the police.  A police search revealed chemicals and equipment consistent with a clandestine laboratory, scattered throughout the flat.  The appellant was arrested after his thumbprint was found on a three litre bottle of hydrochloric acid located on the kitchen bench.  Only about half a teaspoon of the acid remained in the bottle. 

[5]        The indictment contained nine counts alleging breaches of s 12A of the Misuse of Drugs Act 1975.  Each count alleged possession of the particular precursor substance, item of equipment, or material referred to in the charge, with the intention that the particular substance, equipment or material was to be used for the production of methamphetamine.  Count one related to the hydrochloric acid found in the bottle. 

[6]        At trial the defence accepted, first, that the chemicals were precursor substances and, second, that the precursor substances, items of equipment, and materials were capable of being used for the manufacture of methamphetamine.  The primary issue for the jury was whether the Crown had proved that the appellant had possession of each item with the necessary intent.  There was also a subsidiary issue about whether there was a usable quantity of hydrochloric acid in the bottle carrying the appellant’s fingerprint. 

[7]        The appellant did not make a statement to the police and did not give evidence at trial.  

First ground of appeal

[8]        After directing the jury that the Crown must prove beyond reasonable doubt that the appellant had possession of the particular precursor substance, equipment or materials referred to in the various counts, the Judge said:

Possession means either having them in actual or potential physical possession or control and it can also be joint possession.  So possession means having them in actual or potential physical possession or control of a person and it can be joint possession.

The next thing is with the intention that the precursor substances, equipment and material, be used in the commission of an offence against the Misuse of Drugs Act 1975, the production of the Class A drug methamphetamine.  So, the Crown must prove possession of the items, precursors, equipment and material.  Possession means having them in the actual or potential physical possession or control, it can be joint possession with the intent that the items be used in the commission of an offence against the Misuse of Drugs Act, producing the class A drug methamphetamine. 

The appellant’s first ground of appeal is that this direction was inadequate because it failed to make any reference to the mental element of possession. 

[9]        When developing this ground of appeal Mr Lance argued that the problem had been compounded by the Judge’s reference to the possibility of joint possession.  He submitted that if the issue of joint possession with another unidentified person was to be raised, the Judge should have made it clear to the jury that mere knowledge that someone else had possession is not enough; there must be an intention to exercise control over the item. 

[10]     For the Crown Ms Feltham acknowledged that the mental element of possession had been missed out by the trial Judge.  But she submitted that the summing-up had been tailored to the central issues in the trial and that knowledge of possession was not an issue in the sense that the appellant could not have had any of the items in his physical control without being aware of that fact.  She argued that the Judge’s direction that there had to be an intention that the item was to be used in the production of methamphetamine saved the situation because if there is an intention to use a particular item for the manufacture of methamphetamine it must logically follow that there is also an intention to exercise control over the item, and this would have been understood by the jury.  Ms Feltham also noted that Mr Lance had not raised the point with the Judge when the Judge invited counsel to raise any points of concern at the conclusion of his summing-up.  

[11]     It is, of course, beyond argument that the concept of possession involves both physical and mental elements.  In R v Cox (1990) 5 CRNZ 653 this Court said at 655 – 656: 

Possession involves two … elements.  The first, often called the physical element, is actual or potential physical custody or control.  The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention:  knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed);  and an intention to exercise possession.

That analysis was endorsed by this Court in R v Cossey (1996) CRNZ 185 at 189 and we adopt it. 

[12]     In respect of each of the nine counts the Crown had to prove three essential elements:

(a)Physical element of possession;

(b)Mental element of possession; and

(c)An intention to use the item for the production of methamphetamine. 

Given that these are essential elements of the alleged crimes, it was incumbent on the Judge to explain them to the jury so that the jury could properly determine whether the charges had been proved by the Crown.  We reject Ms Feltham’s submission that knowledge of possession was not in issue.  To the contrary, knowledge of possession and an intention for the items to be used for the production of methamphetamine was just as much in issue as the physical element of possession. 

[13]     It is common ground that there was no direction about the mental element of possession.  The only reference to that element was contained in the following directions relating to inferences. 

It is important in this case because the Crown asks you to draw the inferences from all the circumstances here that the accused Mr Yorston did have certain intentions at the time of the dates in the indictment between 4 July 2003 and 21 July 2004, and that was an intention to possess these items, the precursor substances, the equipment and the material to produce the class A drug methamphetamine.  (Italics added.)

These directions occurred well before the concept of possession was addressed by the Judge and they were in an entirely different context.  They were insufficient to convey to the jury, and for the jury to understand, that the Crown had to prove the mental element of possession. 

[14]     While Ms Feltham’s submission that an intention to manufacture methamphetamine must encompass the mental element of possession has its attractions, we cannot avoid the conclusion that the failure to direct the jury about the mental element of possession renders the convictions unsafe.  Instead of being directed by the Judge that the Crown had to prove three essential elements, the jury was only directed that two elements had to be proved.  In this case the evidence to support both the physical and mental elements of possession was not strong.  It came down to the appellant’s social visits to the flat and his fingerprint on the bottle found on the bench in the kitchen, both of which were susceptible to innocent interpretations.  If the jury had been aware that the Crown had to prove three, not two, elements, they may well have arrived at different verdicts. 

[15]     We also agree with Mr Lance that the reference to joint possession provides a further complication.  The jury may well have proceeded on the basis that it was enough if the appellant knew that someone else intended to exercise control over the items and intended to use them for the production of methamphetamine.  An appropriate direction about the mental element of possession would have avoided any possibility of the jury proceeding down that incorrect path. 

[16]     The first ground of appeal has been made out. 

Second ground of appeal

[17]     Mr Lance argued that the Judge’s summing-up was deficient because she had failed to direct the jury that there needed to be a useable quantity of the particular precursor substance under consideration.  He noted that no evidence had been proffered by the Crown that the quantity of hydrochloric acid in the bottle (between one and five millilitres which is the equivalent to half a teaspoon) was useable.  He relied on Police v Emirali [1976] 2 NZLR 476 (CA) to support the proposition that there could not be a crime unless there was a useable quantity of the chemical involved.

[18]     We agree with Ms Feltham that there is nothing in this ground of appeal.  As this Court observed in Police v Emarali at 480, whether a particular amount of narcotic is useable will depend not only on its size and weight but also upon its nature and condition when found.  Although there was only a small quantity of hydrochloric acid left in the bottle, it was a useable quantity in the sense that it could have been combined with hydrochloric acid from another source.  Moreover, the scientific evidence before the jury indicated that dilute hydrochloric acid can be used in the manufacture of methamphetamine. 

[19]     Given the evidence before the jury it was not necessary for the Judge to direct the jury along the lines advocated by Mr Lance.  This ground of appeal fails. 

Third ground of appeal

[20]     During the course of summing-up the Judge told the jury:

Now to identify the accused as having possession of these items, the precursor substances, the equipment and the material, the Crown relies on fingerprint evidence.  Evidence of that kind has long been recognised as a proper method of identification.  If the fingerprint evidence is accepted by you so that you are satisfied that the fingerprint obtained on the hydrochloric acid bottle was the fingerprint of the accused, that evidence can be sufficient without more to identify the accused as the person who placed the fingerprint on the bottle.

With reference to the first sentence, Mr Lance argued that it was wrong for the Judge to refer to all the items which were scattered throughout the flat when the appellant’s fingerprint had only been found on the bottle of hydrochloric acid. 

[21]     We are satisfied that once the Judge’s comment is assessed in the context of the whole of the paragraph quoted above and also in the wider context of the summing-up as a whole, there is no merit in this ground of appeal.  The Judge made it clear to the jury that there were nine separate charges and that the evidence against the accused on each charge had to be considered separately.  She also warned the jury that it would be wrong to bolster the case against the appellant on one charge by evidence that relates to another or to reason that if the appellant was guilty on one charge then he must be guilty of the rest. 

[22]     This ground of appeal fails. 

Outcome

[23]     We are satisfied that the failure to address the jury on the mental element of possession was sufficiently serious to render the convictions unsafe and to amount to a miscarriage of justice.  The convictions are quashed. 

[24]     There was some suggestion that Mr Lance was alive to the successful appeal point at the conclusion of the Judge’s summing-up.  If so, the point ought to have been raised with the Judge at that time.  Without making any adverse criticism about Mr Lance’s conduct in this particular case, we reiterate that it is the duty of both sides to raise any perceived errors with a trial Judge at the conclusion of a summing-up. 

[25]     Given that the appellant has already served his term of imprisonment, no useful purpose would be served by a re-trial.  We decline to order a re-trial.  There remains a credible case against the appellant which has not been disposed of.  In the circumstances we stay permanently the proceedings against the appellant.

Solicitors:
Crown Law Office, Wellington