The Queen v Joll [2003] NZCA 138; (2003) 20 CRNZ 144 (3 July 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA60/03THE QUEEN

v

TIFFANY OLIVIA JOLL

Hearing: 26 June 2003

Coram: Gault P Tipping J Glazebrook J

Appearances: B J Horsley and L Moreland for Appellant
A B Fairley for Respondent

Judgment: 3 July 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] This is an appeal by the Crown by way of case stated, arising from a ruling by Judge Kerr in the District Court at Whangarei. It relates to the correct construction of s12A(2) of the Misuse of Drugs Act 1975. Section 12A(1), (2) and (3) read:

12A. Equipment, material, and substances used in production or cultivation of controlled drugs – (1) Every person commits an offence against this Act who supplies, produces, or manufactures –

(a) Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6 (1) (b) or section 9; or

(b) Any precursor substance –

knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.

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

(a) Any equipment or material that is capable of being used in, or for the commission of an offence against section 6 (1) (b) or section 9; or

(b) Any precursor substance –

with the intention that the equipment, material or substance is to be used in, or for, the commission of an offence against that provision.

(3) Every person who commits an offence against this section is liable on conviction on indictment, -

(a) In the case of an offence against subsection (1), to imprisonment for a term not exceeding 7 years:

(b) In the case of an offence against subsection (2), to imprisonment for a term not exceeding 5 years.

[2] The Judge reserved a question of law under s380 of the Crimes Act 1961, in the following terms:

Was I correct that the intention of the person in possession of the precursor substance has to be that she will personally use the precursor substance for the manufacture of methamphetamine and that it is insufficient to establish an intention on her part that someone else will use the precursor substance in the same way?

Background

[3] According to the evidence given at trial, on the evening of 27 June 2001, the respondent checked into a room at the Quality Hotel in Whangarei. At about 8am on the 28 June, police executed a search warrant on the respondent’s room, and the vehicle she was driving. Inside the vehicle, police located a large bag of medication tablets, including the brands Sudafed, Telfast and Actifed. The bag weighed approximately 300 grams and contained several thousand pills. These tablets are sought-after items in the manufacture of methamphetamine because they contain the substance ephedrine, an essential chemical for the production process. The police also located a large number of snap-lock bags in which manufactured methamphetamine could be packaged, and a bag of dextrose sugar which is a common “cutting” compound used as a carrier for methamphetamine. A quantity of coffee filters found in the car could also be used in the manufacturing process. Under the passenger seat were two bags of methamphetamine powder and a pipe to smoke it with.
[4] When spoken to by the police, the respondent admitted that the items belonged to her, and that the powder was for her own personal use. She declined to say what she was going to do with the tablets. The respondent was charged under section 12A(2)(b) with possession of a precursor substance (psuedoephredrine) with the intention that the substance was to be used for the commission of an offence against section 6(1)(b) of that Act, namely the manufacture of a Class B drug.
[5] There is no dispute that what was in the respondent’s possession was a precursor substance, nor that she had possession of it. The sole matter for determination was the respondent’s intention. The Crown opened its case on the basis that the person in possession of a precursor substance may either intend to personally use it to manufacture methamphetamine, or intend that someone else will use the substance in the same way. At the conclusion of the Crown case, the Judge ruled that, as a matter of law, the intention of the person in possession had to be to use the precursor substance personally for the manufacture of methamphetamine. Therefore, it would be insufficient to establish an intention that someone else would use the material for the purposes of manufacturing a Class B drug. On that basis, the Judge directed the jury to return a verdict of not guilty, and reserved the question of law for appeal to this Court by way of case stated.

[6] The Judge’s reasoning was based on the decision of this Court in R v Fitzgerald (CA 456/2000, 22 March 2001), which he interpreted as determining that the intended use must be by the person in possession.
[7] However, the Judge recognised that there were potentially conflicting dicta in the judgment of Moore v Police (High Court, Tauranga, AP11/01, 23 August 2001), where Randerson J said that:

As far as counsel were aware, there has not been any decision dealing with the issue of intention under section 12A(2) since it was enacted by section 5 of the Misuse of Drugs Amendment Act 1998. I was referred to the decision of the Court of Appeal in R v Fitzgerald (CA 456/00, 22 March 2001) where this provision was discussed but the Court did not deal specifically with the issue of intention. Essentially the Court in Fitzgerald found there had been a misdirection to the jury because, although the appellant had been charged under section 12A(2), the Judge had directed the jury on the alternative, but distinct, offence under section 12A(1).

[8] Randerson J went on to set out the principles in relation to the interpretation and application of section 12A(2)(a), and described as “self-evident or not in dispute” the proposition that:

The relevant intention is that of the person who has possession of the equipment or material and is to be assessed at the time he or she is found to be in possession. But the intention of the person in possession may be to use the equipment or material personally for the specified offences or that someone else will do so. [emphasis added]

[9] Judge Kerr concluded that Moore is inconsistent with Fitzgerald, but considered he was bound by this Court’s decision in Fitzgerald as he considered it should be interpreted.
[10] Mr Horsley, for the Crown in support of the appeal, submitted that the question in the case stated must be answered in the negative, and that this is an appropriate case for the Court to exercise its discretion to direct a new trial under section 382(2) of the Crimes Act 1961. Mr Fairley argued, to the contrary, that the Judge’s ruling is correct.

Interpretation of Section 12A(2)(b):

[11] We consider the wording of the subsection is clear. The relevant intention is that of the person in possession of the precursor substance. That intention must be that the substance is to be used in the specified ways (in this case in the manufacture of the controlled drug methamphetamine). It does not identify any person by whom it is intended that it will be so used. The use of the passive “is to be used” in contrast with words such as “with the intention of using it” strongly points away from an interpretation confining the intended use to that of the possessor.
[12] There is a degree of symmetry in subsec (2) with subsec (1). The same wording (“is to be used”) appears in subsec (1), where it is clear that a person supplied with a precursor substance which the supplier knows will be used for a specified purpose must be a person different from the supplier.
[13] Mr Fairley argued that there should be inferred from the lesser penalty for the offence under subsec (2), compared with subsec (1), that subsec (2) is intended to relate to conduct of less culpability which would be more consistent with an offence limited to use by the possessor, and that subsec 2 is not directed to intended supply. We do not accept that. The disparity in penalty is consistent with perceived greater culpability for actual supply (or production and manufacture) than for mere possession with an unrealised intention.
[14] The focus of subsec (2) appears to be those who gather precursor substances necessary for the substantive offences of manufacturing or dealing in controlled drugs, but whose roles fall short of attempts to commit the substantive offences or being party to them. There is no policy reason why the culpability should be any different because the intended use for manufacture of a controlled drug is to be by another person.

[15] While there are dicta in the judgment in Fitzgerald which, when taken out of context, might suggest an interpretation limiting the intended use to that of the possessor, the point was not in issue in that case. There the Crown case was presented on the basis that the intended use of the precursor substance was by the accused herself. The issue in the case related to the Judge’s summing up in which he appeared to import from s12A(1) the element of knowledge which is not an element of the offence in subsec (2). When the Court referred (para 13) to the live fact for the jury being whether the appellant’s intent was to produce or manufacture herself, it was in the context in which there was no suggestion that the production or manufacture would be by anyone else. The Court held in the circumstances it was a misdirection in light of the Crown case to (in effect) invite the jury to consider in the alternative an offence having the subsec (1) element of “knowing” that the substance would be used by another. Fitzgerald therefore is not authority for the general preposition taken from it by Judge Kerr.

A New Trial?

[16] The Crown submits that a new trial should be ordered in this case because the evidence against the respondent is sufficiently strong, and the prospect of conviction sufficiently high. Section 382(2)(b) of the Crimes Act provides:

(2) Upon the hearing of any appeal under the foregoing provisions of this Part of the Act...the Court of Appeal may –

(b) If of the opinion that the ruling was erroneous, and that there has been a mistrial in consequence, direct that a new trial...

Provided that no conviction or acquittal shall be set aside, nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial, or some misdirection given, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage of justice was thereby occasioned on the trial.

[17] In R v Stephens (CA 455/02, 24 March 2003), this Court indicated that the following factors will be relevant to the exercise of the Court’s discretion under section 382(2): the seriousness of the particular offence, the prospect of conviction or acquittal in the event of a new trial, whether the verdict was directed or deliberated, the prejudice caused to the defendant in having once more to defend, and any other relevant matters. On that approach, the Crown says, the circumstances of this case support the direction of a new trial. The offence with which the respondent was charged was serious, and carries a maximum penalty of five years imprisonment. The evidence against the respondent is compelling, and the prospects of conviction at a new trial high. The original verdict in the District Court was directed, and there is nothing to suggest that any undue prejudice would result to the respondent from a direction for a new trial.
[18] For the respondent it was submitted that the Court should not order a new trial because the ruling of Judge Kerr has not resulted in a “substantial wrong or miscarriage of justice”. Counsel argues that “there is not a sufficiently real prospect that the jury would have convicted the respondent if the Crown were able to rely on the intention of another”. That statement in counsel’s written submissions contends that the Crown would be unable to prove that another party intended to commit an offence under section 6 of the Act. That is not, however, the test. The Crown says that it will be able to prove that the appellant intended that someone else commit the offence, and that there is accordingly a real prospect of a conviction on retrial. There is evidence to support that.
[19] Counsel for the respondent further argued that this type of offending is a preparatory offence at the lower end of the scale, that the respondent has already incurred costs at the first trial, and that it is now almost two years since the alleged offence was committed.
[20] We are satisfied that having succeeded in having reversed the ruling that led the Judge to direct a not guilty verdict, the Crown is entitled, in the circumstances of this case, to an order for a new trial.
[21] Accordingly, the appeal is allowed. The question is answered in the negative and there is an order for a new trial.

Solicitors:
Crown Law Office, Wellington, for Appellant
Thomson Wilson, Whangarei, for Respondent