Wang v The Queen
[2005] NZCA 147
•14 June 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA387/04
THE QUEEN
v
SHU ZENG WANG
Court:Glazebrook, William Young and Chambers JJ
Counsel:S W B Foote for Appellant
M D Downs for Crown
Judgment (On the papers): 14 June 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by William Young J)
Introduction
[1] This appeal against conviction raises a narrow point and has been determined, with the agreement of counsel, on the papers.
[2] As it has turned out, the adoption of this course has caused us a little anxiety. The Court did not invoke the statutory on the papers process provided for by s 392A of the Crimes Act 1961. Section 392A(1) provides that where that process is not invoked an appeal must be dealt with by way of “a hearing involving oral submissions”. If s 392A(1) is construed literally, it requires the present case to be dealt with following the hearing of oral submissions.
[3] Upon reflection we consider that s 392A(1) should be construed simply as conferring an entitlement to the parties to an appeal to an oral hearing in any case where the statutory on the papers process is not invoked – an entitlement which the parties can waive if they choose.
The facts
[4] The appellant and Yujie Ma arrived in New Zealand on 31 July 2003. They had come from Hong Kong. Each was found to be in possession of substantial quantities of Contact NT capsules. Contact NT is a medicine which, in accordance with the label claims made on the packages in which it is marketed, contains the precursor substance, pseudoephedrine.
[5] Ma and the appellant subsequently faced trial in the District Court at Auckland on two counts. The first was in these terms:
1 THE CROWN SOLICITOR AT AUCKLAND charges that YUJIE MA AND SHUZENG WANG, on or about 31 July 2003, at Auckland, had in their possession a precursor substance, namely pseudoephedrine, with the intention that it be used in the commission of an offence against section 6(1)(b) of the Misuse of Drugs Act 1975.
Particulars: The 8,660 capsules of Contact NT located in Ma’s luggage.
The second count was expressed in similar terms in relation to 11,520 capsules of Contact NT located in the appellant’s luggage.
[6] The Crown was required to prove that the Contact NT capsules which were the subject of both counts contained pseudoephedrine. The evidence upon which it relied included evidence of analysis which the Crown says was carried out on two of the capsules, one coming from the 8,660 capsules found in the possession of Ma and the other from the 11,520 capsules found in the possession of the appellant. In both respects the Crown relied on certificates of analysis which were tendered under the provisions of s 31 of the Misuse of Drugs Act 1977.
[7] The trial Judge (Judge JP Doogue) held that the Crown was not entitled to rely on the certificate of analysis which was referable to the Contact NT found in the appellant’s luggage. The Crown had not complied with the notice procedure provided for by s 31 of the Misuse of Drugs Act. As the Crown was thought not to be in a position to prove, by other evidence, that the Contact NT capsules in question contained pseudoephedrine, the appellant and Ma were discharged on the count that related to those capsules.
[8] The approach taken in relation to this count was unduly favourable to the appellant and Ma. The analysis of the capsule found in Ma’s luggage was relevant to the question whether the apparently identical Contact NT capsules found in the appellant’s luggage contained pseudoephedrine. As well, there was evidence from a pharmacist to the effect that Contact NT capsules contain pseudoephedrine. Also arguably relevant is the label claim on the cardboard boxes in which the capsules were packaged – a label claim to the effect that Contact NT contains pseudoephedrine.
[9] Be that as it may, the jury was required to determine only the count addressed to the 8,660 capsules found in the possession of Ma. To this count, the primary defence advanced by the appellant was that the chain of custody evidence adduced by the Crown was insufficient to enable the jury to conclude (or infer) that the analysis relied on by the Crown was of capsule which came from the 8,660 capsules found in Ma’s luggage. Basing himself on this argument, counsel for the appellant sought a discharge under s 347 of the Crimes Act but this application was declined by the trial Judge. The same defence was then advanced to, and rejected by, the jury.
[10] As in the case of the count on which the appellant and Ma were discharged, the focus was very much on the evidence of analysis and the other evidence which may have been seen as establishing that the Contact NT capsules in question contained pseudoephedrine would appear to have been overlooked.
The evidence
[11] Customs Officer Roger Batten gave evidence of finding a large number of capsules of Contact NT in Ma’s luggage. He found a total of 166 cardboard boxes and 8,660 capsules which were in blister foils each of which contained 10 capsules. There were 866 such blister foils.
[12] When Customs Officer Batten was giving evidence he was shown a booklet of photographs and there was the following exchange:
QIf you just open up to the first page you will notice that if you just turn over the blue page, there are photographs numbered 1 through to 8, you’ve just described or you’ve just referred to in your evidence 18 loose individual sheets, I just wondered if any of those photographs assist His Honour and members of the jury with how the Contact NT looked when you located it in that particular carry bag?
AIn the loose sheets, picture 3.
QWas there anything of or anything that you observed about the loose sheets when you located the Contact NT?
ANo
QYou’ve have also talked earlier in your evidence about some of the Contact NT in the larger or the passenger’s suitcase being in boxes as well as being loose packets, when you say in a box is that some of the Contact NT looking like photograph 1?
AThat is correct.
QAre you able to say anything about how the Contact NT was inside those boxes?
AWithin the actual boxes the Contact NT, the sachets had been cut so that you could fit extra sachets inside the box, so the standard box could have an extra 2 or three sheets per box that had been cut so that you could slide them in to fit more in the box.
[13] Constable Paul Housley gave evidence that he received on 31 July 2003, 166 Contact NT cardboard boxes and 866 blister foils (each containing 10 Contact NT capsules) and thus 8,660 capsules along with Ma’s arrival card and other material associated with Ma. He was able to identify from the booklet of photographs which was produced, images of the material given to him by Customs Officer Batten. He further referred in his evidence to having “arranged” for those photographs to be taken the preceding week.
[14] As part of his exhibit handling procedures, Constable Housley separated the cardboard boxes from the foil blister sheets. The foil blister sheets were placed in a plastic bag and a drug exhibit form in relation to them was prepared. The subject name recorded was MA/Yujie. Subsequently the number 03/463 (an exhibit number) was added to this form although not by Constable Housley.
[15] The Crown case was that the plastic bag and drug exhibit form were then taken from the airport to the Papakura Police Station. No direct evidence of this, however, was given.
[16] Constable Darren Cockburn, in a written brief of evidence that was read by consent said:
On the 22nd of September 2003 at around 3.10pm I uplifted a … blister packet sample from the drug exhibit labelled 03/463 from the property and exhibit store at the Papakura Police Station.
I then transported these exhibits to the ESR (Institute of Environmental Science and Research) Mt Albert Science Centre, in Mount Albert, AUCKLAND. At about 4.10pm I handed the drug exhibits to Jackie BUNYAN a scientist employed at ESR Mt Albert Science Centre, who acknowledged receipt of the exhibits by signing and date stamping the form ‘Exhibits for Laboratory Examination’.
[17] The drug exhibit form initially filled in by Constable Housley contained references to Constable Cockburn removing material from the exhibit on 22 September 2003 for the purpose of forwarding to the ESR.
[18] A certificate by Ms Anna Petricevich was admitted in evidence. This certificate provided:
On 22 September 2003 Fiona Matheson, an employee of ESR, Auckland, an approved laboratory for the purpose of the Misuse of Drugs Act 1975, who is authorised, for the purposes of that Act, by the Analyst in Charge of the laboratory to receive substances, preparations, mixtures or articles in sealed packages or by registered post, received from Constable D Cockburn personally one sealed standard drugs envelope, marked with the file reference name “MA/Yujie”. The envelope contained the following:
02A sealed blister pack containing ten red/clear capsules. One capsule was analysed and contained pseudoephedrine.
Pseudoephedrine is listed as a “Precursor Substance” in the Misuse of Drugs 1975, Schedule 4, Part 1 (as inserted by the Misuse of Drugs Amendment Act 1998, No. 14).
[19] In all of this there was one gap and one possible anomaly.
[20] The gap, which is already apparent from what we have said, is that there is no direct evidence as to how the sealed plastic bag containing the Contact NT capsules came to be at the Papakura Police Station and thus no direct evidence to show that the blister foil which Constable Cockburn took to the ESR was amongst the blister foils containing Contact NT which had been found in Ma’s luggage on 31 July.
[21] The apparent anomaly is that whereas Constable Cockburn said that he gave the blister foil to “Jackie Bunyan”, the certificate of analysis relied on referred to the blister pack having been received by “Fiona Matheson”.
The appeal
[22] Although the appellant’s counsel seeks in effect to review the s 347 ruling of the Judge (see [9] above), there is no right of appeal against such a ruling. Rather the appeal must be treated as involving the contention that the verdict should be set aside on the basis that it is unreasonable or cannot be supported having regard to the evidence.
[23] On the narrow way in which the case was left to the jury, the Crown case depended on the jury accepting that the capsule analysed by the ESR was one of the capsules located in Ma’s luggage by Customs Officer Batten. There is no rule of law which requires such a fact to be proved in any particular way. Accordingly, it was open to the jury to infer that the capsule analysed came from the capsules seized providing there was a proper evidential basis for that inference.
[24] We are well satisfied that there was an adequate (and indeed one might say overwhelming) evidential basis which supported that inference.
[25] The certificate itself was evidence that a “sealed blister pack” in issue was received from Constable Cockburn on 22 September 2003. Despite the anomaly to which we have referred (the certificate referring to the “sealed blister pack” being received by Fiona Matheson and Constable Cockburn’s referring to a delivery to Jackie Bunyan) it was open to the jury to infer that the “sealed blister pack” referred to in the certificate was the sealed blister pack which Constable Cockburn took from the sealed plastic bag which comprised exhibit 03/463. The alternative theory involves assumptions which are sufficiently implausible to be regarded as not raising a reasonable doubt.
[26] We note in passing that in Bell v Police M1554/79 HC AK 6 November 1979, in which the underlying factual circumstances were similar, Holland J held that the certificate of analysis was inadmissible and that, in any event, it had not been open to the Magistrate to infer that the articles analysed came from the defendant. As is apparent from what we have said, we consider this case to have been wrongly decided.
[27] It was also open to the jury to infer that the exhibit 03/463 from which Constable Cockburn extracted a blister foil was the exhibit initially assembled by Constable Housley on 31 July. The description in the certificate refers to 10 red/clear capsules and a “sealed blister pack” and this corresponds to the form of the Contact NT which are shown in the photographs. It is hard to see how exhibit 03/463 could be anything but the exhibit initially prepared by Constable Housley. This was the only reference number that was ever attached to the capsules found in Ma’s luggage. Constable Cockburn’s notations about what he did on 22 September are on the form initially prepared by Constable Housley. The possibility that Constable Cockburn could have taken capsules from another exhibit is so unlikely as to be able to be disregarded.
[28] The general drift of the evidence of Customs Officer Batten and Constable Housley provides further support for the Crown case in relation to the point just discussed. They both referred to photographic exhibits which were apparently prepared on the instructions of Constable Housley the week before trial. Taking a common sense approach to police procedures, the relevant photographs must have been taken of the Contact NT capsules which formed part of exhibit 03/463 and the evidence very much suggests that those were the capsules found in Ma’s luggage.
[29] As we have made clear, the conclusion that Contact NT capsules contain pseudoephedrine was not necessarily dependent on acceptance that the relevant certificate was referable to a capsule found in Ma’s luggage. The evidence from the pharmacist and perhaps the label were also capable of supporting such a conclusion. However, as we are well satisfied that the jury was entitled to find the appellant guilty on the basis upon which the case was presented, we see no point in discussing that evidence in any further detail.
Result
[30] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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