THE QUEEN v MAREE ANN FITZGERALD [2001] NZCA 72 (22 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 456/00

THE QUEEN

V

MAREE ANN FITZGERALD

Hearing:	22 March 2001
Coram:	Tipping J Robertson J Young J
Appearances:	P H B Hall for Appellant
	J C Pike for Crown
Judgment:	22 March 2001

judgment of the court DELIVERED BY ROBERTSON j

[1] The appellant faced trial in the District Court at Christchurch on one charge that on or about 18 July 2000 at Christchurch, she had in her possession a precursor substance, namely, acetic anhydride (listed in Part 2 of Schedule 4 of the Misuse of Drugs Act 1975) with intent to use it in or for the commission of an offence of producing or manufacturing a controlled drug contrary to s 12A(2)(b) and (3)(b) of the Misuse of Drugs Act 1975.

[2] On 23 November the jury returned a verdict of guilty and on 30 November 2000, Ms Fitzgerald was sentenced to 1 year of imprisonment.She appeals against both conviction and sentence.

[3] The appeal against conviction is on the grounds that the Judge summed up on the basis of two alternative crimes and failed to give proper direction on the force and effect of the accused's out of Court statement to the police.

[4] On the morning of 18 July 2000, a search warrant was executed at the appellant's home address.Three police officers visited the flat which was unoccupied at the time.The police found a small eye-dropper bottle on a shelf above the bench in the kitchen which contained 14 millilitres of acetic anhydride and a Kentucky bourbon bottle beside a rubbish tin in the kitchen which contained 135 millilitres of acetic anhydride.Six empty pill bottles were found in a back-pack in a wardrobe.The police also noted, but did not seize, syringes and needles in the top drawer of the dresser in the bedroom area, and a syringe and needle in the lining of a jacket hanging on the rear of the front door.There were sterilising strip pad packets on a shelf in the kitchen and on a table in the lounge.Despite undertaking a fairly thorough search no other paraphernalia was discovered consistent with the converting of morphine sulphate tablets to heroin.On the evidence this is achieved with a spoon, a heat source, baking soda and an acidic liquid such as vinegar or lemon juice.The evidence indicated that spoons used in such a way often have burn marks or remnants of burning on them after manufacture has taken place.

[5] On the afternoon of the same day a Detective Sergeant returned to the property and uplifted the accused and transported her to the police station. The appellant was permitted to pick up her methadone prescription on the way. In a written and signed statement she admitted that the acetic anhydride was hers and said that she had had it from when she was previously arrested 3 years ago.She told the police that she had collected all her property at the end of the previous year and taken it to this flat.She said she had tested the acetic anhydride by dropping it into a glass of water and as it broke up she knew it was no good.She told the police officer that she knew it was an offence to have it, but when asked if she had ever sold acetic anhydride she replied, "not recently, not since a year ago".

[6] In what Mr Hall described as the "alternative crimes" direction the Judge made the following comments to the jury :

So before you may convict the accused you must be satisfied beyond reasonable doubt that you are, from the proven facts, able to draw the inference that within a reasonable time before the 18^th of July 2000, either the accused intended to use it herself for the production or manufacture of a controlled drug or during that period she intended, that is she meant, to give or sell it to someone else, she knowing that that person or persons intended to use it for the manufacture or production of a controlled drug, or it may be that you draw the inference that she intended it for both purposes.So the issue is as to what her intention was.

Later he said :

... that the accused either intended to pass on the acetic anhydride either by way of sale or some other form of distribution to another or others knowing that it would be used for the purpose of producing or manufacturing a controlled drug or alternatively, or as well, there is an inference that she intended to use it herself for the purposes such as manufacturing or production.

[7] It is submitted that the directions given were in part consistent only with the distinct offence under s 12A(1)(b) of the Misuse of Drugs Act, whereas what this appellant was charged with was an offence under s 12A(2)(b).Counsel submitted that the appellant was not charged in the alternative and the case should not have been put to the jury on that basis.

[8] Section 12A(1)(b) in so far as it is relevant provides :

(1)Every person commits an offence against this Act who supplies, produces, or manufactures--

...

(b)Any precursor substance--

knowing that the ... substance is to be used in, or for, the commission of an offence against the provisions of s 6(1)(b) or s 9 of the Act.

[9] Section 6(1)(b) is the general dealing offence and s 9 is the cultivation offence which is not relevant to the facts of this case.

[10] Section 12A(2)(b) (under which the indictment was laid) in as much as it is relevant provides :

(2)Every person commits an offence against this Act who has in his or her possession--

(b)Any precursor substance--

with the intention that the ... substance is to be used in, or for, the commission of an offence against the provisions of s 6(1)(b) or s 9.

[11] There was no argument about the fact that acetic anhydride is a precursor, or that Ms Fitzgerald had possession of it.The sole issue was intent.The charge alleged the possession was for producing and manufacturing.

[12] Section 6 is expressed in wide terms and includes as well as producing or manufacturing, importing into or exporting from New Zealand, supplying, and administering or offering to supply or administer.However the Crown in the charge had adopted a focused perspective and that must permeate the trial.

[13] Accordingly the live fact for the jury to decide was whether the appellant's intent was to produce or manufacture herself.

[14] The Crown submitted :

If the element of a possible supply to another can co-exist with use by the appellant, where "supply" could not be proved for s 12(1)(b) purposes, there can be little complaint that the offence contemplated by the appellant included another person making heroin from the supply of acetic anhydride found, where actual supply with intent could not be proved.In short, an element of the 12A(1)(b) offending is incorporated in 12A(2)(b).Under the latter provision there is no need to prove that any person supplied with the precursor would be known by the supplier to be possessing the substance for the purpose of an offence, that knowledge accompanying an act of supplying.

[15] Although this interpretation may be capable of logical expression, we are not satisfied that in all the circumstances it was an available approach.The Crown made its allegation in a precise way.It was not open to it or the Judge to open it up at a late stage on an alternate basis.

[16] We are accordingly of the view that there was a misdirection which was capable of causing substantial injustice in this aspect of the case.

[17] In addition the appellant complained that the Judge failed to direct the jury adequately as to how they might properly consider her out of Court statement.

[18] On this aspect of the case the Judge said :

When somebody makes a statement to the police it is not evidence under oath or affirmation as is evidence in the witness box, nor is it subject to cross-examination, but it is an important part of the evidence and you might think it has the benefit of being what the suspect says at first blush when interviewed by a police officer.It is entirely a matter for you to decide what weight you attach to that evidence just as it is for you to decide what weight you attach to the evidence of the police officers in this case.

[19] It is submitted that the jury in this case should have been told that if they believed her statement in its entirety then their duty would be to find the appellant not guilty, or if they were left in a state in where they did not know whether or not to believe the statement, their duty would likewise be to find her not guilty because they would be left in a state of reasonable doubt.

[20] There is no absolute rule as to how an out of Court statement should be dealt with.This jury was given only a general direction about evidence in the round.There was no tailoring of the direction to deal specifically with the effect of what had been raised in the out of Court statement.Although it was an out of Court statement, it raised an issue which the Crown had to exclude as a reasonable possibility before the jury could draw the inference which the Crown was inviting.

[21] There was a further reference to this aspect in the summing up when the Judge in referring to the defendant's case noted that Mr Hall had submitted :

... that it would simply be untenable and unsafe for you to draw an inference that the accused had possession of the substance intending or meaning to use it for the manufacture or production of a controlled drug, either by herself or knowingly by others.

[22] That direction notwithstanding, we are of the view that as this was the essence of the appellant's defence, the jury was insufficiently directed as to the way in which this immediate assertion by the appellant when spoken to by the police had to be considered.

[23] There was a third issue about the unreasonableness of the verdict but it is unnecessary to consider as it follows that the appeal against conviction must be allowed.This is not a case in which consideration can be given to the use of the proviso because the imprecision established relates to the very issue which was critically in dispute in the trial.

[24] The appellant was sentenced to 12 months imprisonment.She served 2 months of that term before being granted bail by this Court.The pre-sentence report indicates that this 32 year old woman has a long history of drug abuse.As the report indicates, her addiction has clearly had a grip on her and has played a significant role in her criminal offending.

[25] Bearing in mind the highest potential of the allegation made against her, we have concluded that in the circumstances of this case (and bearing in mind the time she has already spent in custody) it is not appropriate to order a re-trial.

[26] The sentence which was imposed was heavily influenced by her previous record.Over and against those important factors it is to be remembered that this was a case of possession with intent and not of more serious action.In addition there is the position of the 15 year old daughter.She is undoubtedly in very vulnerable circumstances in light of her history consequent upon her mother's addiction.

[27] If at a retrial there was again a conviction entered, in light of the time the appellant served it appears inevitable that emphasis would have to be on community based aspects of sentencing.

[28] It would be counterproductive and an imprudent use of resources to require a further trial which is unlikely to have any practical effect.Ms Fitzgerald well knows that unless she deals with her addiction she will again lose both her liberty and consequently the opportunity to care for her daughter.

[29] The appeal against conviction is allowed and we decline to order a retrial.

Solicitors:

P H B Hall, Christchurch, for Appellant

Crown Law Office, Wellington