THE QUEEN v CHRISTOPHER RAUMATI RAWIRI [2003] NZCA 226 (25 September 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA117/03

CA125/03

THE QUEEN

v

CHRISTOPHER RAUMATI RAWIRI

ROBERT ONSLOW WELLS

Hearing: 22 September 2003

Coram: Anderson J

Rodney Hansen J

Salmon J

Appearances: NL Faigan for the Appellant Rawiri

SD Patel for the Appellant Wells

K Raftery for the Crown

Judgment: 25 September 2003

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

Introduction

[1]

The two appellants were convicted, after trial by a jury in the District Court at Auckland, of joint charges of possession of equipment and of precursor substances for the purpose of the manufacture of methamphetamine, possession of a methamphetamine pipe and possession of a firearm and ammunition.They were discharged under s 347 of the Crimes Act 1961 on a count of manufacturing methamphetamine.They were each sentenced to two years imprisonment with leave to apply for home detention.They appeal against their convictions.

Facts

[2]	The articles the subject of the charges were found by police when they searched a warehouse at Birkenhead in Auckland on 15 March 2002.The building was leased by Mr Wells.He used part of it for his business of building and repairing pool tables.Mr Rawiri was a friend of his who lived in the building.
[3]	In an area of the building described as a kitchen, a glass separating flask was found which is commonly used for the manufacture of methamphetamine.Elsewhere a container of toluene was found.It is a precursor substance for the manufacture of methamphetamine.Police also found a number of glass containers, which on analysis were found to contain compounds and residues of other precursor substances, including methylethylketone, acetone and pseudoephedrine.The glass pipe was found in the kitchen area.There was evidence that it was of a type commonly used for smoking methamphetamine.A shotgun and 57 rounds of ammunition were found behind pool tables in an area of the building used by Mr Wells for the purpose of his business.The shotgun was concealed inside a length of plastic piping.
[4]	Mr Rawiri’s fingerprints were found on a glass beer jug which was located adjacent to the separating flask and to a funnel which had traces of methamphetamine on it.Mr Wells’ fingerprints were on a water bottle found in the same area and on a conical flask which had traces of pseudoephedrine on it.
[5]	The premises were equipped with closed-circuit television which enabled the entrance to the building to be viewed from the kitchen area.

Crown case

[6]

The Crown case against Mr Rawiri relied on his residence in the premises; his fingerprints on the glass jug; the presence of numerous utensils which had or could be used in the manufacture of methamphetamine and the proximity of the glass jug to them; and on the location of the pipe in full view in an area of the premises obviously used for recreational purposes.Under s 66 of the Arms Act 1983, as an occupier of the premises, he was deemed to be in possession of the firearm and ammunition unless he could prove that they were not his property and were in the possession of someone else.

[7]

The case against Mr Wells was based on broadly similar circumstances.He was not in continuous residence but admitted to being a regular visitor to the building in the course of his business.As earlier mentioned, his fingerprints were on two of the utensils found by police.He admitted ownership of a shotgun of the same make as that found in the premises.He claimed to have misplaced it and said that the shotgun found in the premises was a different model to the one he lost.

Defence case

[8]

Neither appellant gave evidence.They relied on statements made to the police which denied knowledge that any of the offending items were on the premises.The only defence evidence was a firearms expert called by Mr Wells to support his claim that the shotgun found on the premises differed from his description of one of the same make which he had previously owned.

Appeal – Mr Rawiri

[9]	Mr Rawiri challenges his convictions on the following grounds:
a)	The use of the premises by other persons undermined the Crown case.
b)	The prosecutor made prejudicial remarks which may have affected the jury’s deliberations.
c)	The evidence in support of the Arms Act charges was inadequate.
d)	The demeanour of Mr Wells during the Judge’s summing up was prejudicial to Mr Rawiri.

[a] Use of premises by others

[10]	Mr Faigan pointed to evidence of others visiting the premises.They included two men who stored material in the warehouse and a third whose fingerprints were found on utensils, including the jug on which Mr Rawiri’s fingerprints were also found.Mr Faigan complained that the police had failed to adequately investigate whether these individuals could have been responsible for the presence of the utensils and precursor substances.
[11]	It appears that the police unsuccessfully sought to locate the other person whose fingerprints were found on utensils.They did not attempt to locate or interview others referred to as the statements of both Mr Rawiri and Mr Wells did not suggest that they were regular visitors to the premises.
[12]	We accept Mr Raftery’s submission that it was open to the jury to conclude that the only people shown to have a real and substantial link to the premises were Mr Rawiri and Mr Wells.The jury were aware from their statements and cross-examination of police officers that others may have visited the premises and were directed by the Judge to take account of that possibility.But it was open to the jury to conclude that the possible involvement of others did not undermine the Crown case.The circumstances relied on by the prosecution were sufficient to support an inference that Mr Rawiri was in possession of the articles found.

[b] Prosecutor’s comment

[13]	As earlier mentioned, both appellants were also charged with the manufacture of methamphetamine and were discharged under s 347 of the Crimes Act.In closing the Crown prosecutor made some reference to the possible sale and manufacture of methamphetamine.It appears she invited the jury to conclude that the exhibits found at the address were evidence of an intention to manufacture methamphetamine.Mr Rawiri claims that some comments were also made by the prosecutor about a commercial element in the activities said to have been carried out.
[14]	In her summing up the Judge reminded the jury that the charge of manufacturing methamphetamine was no longer in issue.She went on to say that a reference by the Crown prosecutor to the supply or sale of methamphetamine did not form part of the charges and for the jury to put that to one side.
[15]	Mr Faigan submitted that notwithstanding the Judge’s directions, the jury might have retained the impression that the appellants were involved in the manufacture and sale of methamphetamine.We do not agree.We are satisfied that the Judge’s direction was adequate to meet any unfair prejudice which may have arisen as a result of any improper comments by the prosecutor.

[c] Firearms charges

[16]	Mr Rawiri challenges the convictions for offences under the Arms Act on the basis that there was insufficient evidence to link him to the area of the premises in which the firearms and ammunition were found.They were located in an area used for storage of Mr Wells’ pool tables and not in the area in which Mr Rawiri lived.
[17]	Mr Faigan pointed to remarks in summing up by the Judge which suggested that the evidence against Mr Rawiri on these charges was inadequate.She said:

“You might think that in relation to the gun and ammunition charges, the evidence against Mr Rawiri is insufficient to prove the Crown case beyond reasonable doubt.”

At this stage of her summing up the Judge had not explained to the jury that, as Mr Rawiri was in occupation of the building, he was deemed to be in possession of the firearm and ammunition unless he was able to prove that it was not his property and that it was in the possession of some other person.A direction as to the onus on the defence was given as part of a supplementary direction.In any event, the Judge’s remark cannot be taken to suggest that there was no evidence which could support the charges.

[18]

Mr Faigan submitted that Mr Rawiri’s statement to the police that he used only a part of the building was sufficient to discharge the onus on him.That may be so if the jury accepted what he said.But the jury was entitled to reject that evidence.The presence of Mr Rawiri’s fingerprints on the jug which was located in another part of the building supported the Crown case that he moved beyond the confines of his living area.We are satisfied that the jury was entitled to find that Mr Rawiri had not discharged the onus on him.

[d] Mr Wells’ demeanour

[19]	We were told that Mr Wells slept during the Judge’s summing up.Mr Rawiri believes this could have been construed by the jury as arrogant or insulting behaviour which would prejudice the jury’s verdict.
[20]	There is no merit in this argument.It is not to be assumed that a jury would be deflected from its task by such a consideration.

Mr Wells’ appeal

[21]	Mr Wells’ appeal is advanced under s 385(1)(c) of the Crimes Act.Mr Patel argued that the verdicts against his client were unreasonable or could not be supported by the evidence.
[22]	In relation to the Misuse of Drugs charges, Mr Wells relied, like Mr Rawiri, on the access others had to the premises and the failure of the police to enquire further into their activities. Mr Patel also pointed to the absence of evidence which would indicate how long the incriminating items had been in the premises.He said there was a possibility they had been transported there only a short time before the search. Similarly, he said it could not be established how long Mr Wells’ fingerprints had been on the utensils.They could have been handled by him before they were filled with the substances found in them.Mr Patel also pointed to the explanations of innocent touching of the articles offered by Mr Wells in his statement to the police.
[23]	These are all matters which the jury was entitled to take into account in deciding whether or not the circumstances established that Mr Wells was in possession of the offending articles.Depending on the weight they were accorded, they could have raised a doubt in the jury’s mind.But neither individually nor collectively do they provide a complete answer to the prosecution case.The evidence relied on by the Crown was sufficient to support an inference that Mr Wells was in possession of the items.
[24]	The case against Mr Wells in respect of the Arms Act charges was strong.The articles were found behind pool tables in that part of the building in which he worked.He admitted to once owning a firearm of the same make as that found.
[25]	Mr Patel submitted that his client had discharged the onus on him to rebut possession by his statement to the police that the firearm he had owned was a different model from that found at the warehouse.If the jury had accepted this part of Mr Wells’ statement to the police, he may well have succeeded in discharging the onus.But the jury was not obliged to accept this or any other part of Mr Wells’ statement.It was entitled to accept that Mr Wells had owned a shotgun of the make found but to reject his claim that it was a different model.On that view of the evidence, the case against Mr Wells was overwhelming.
[26]	There was evidence to support all verdicts against Mr Wells.

Result

[27]	Both appeals are dismissed.

Solicitors: Crown Solicitors, Auckland

N Faigan, Auckland