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Tito v R [2005] NZCA 292 (30 November 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA406/04412/04424/04

THE QUEEN

v

NAHI GEORGE MAIHI
TYRONE RICHARD MAIHI
JAINE SHYE TITO

Hearing: 27 October 2005

Court: Chambers, Williams and Rodney Hansen JJ

Counsel: W N Dollimore for Appellant Nahi Maihi
M S Gibson for Appellant Tyrone Maihi
M A Kennedy for Appellant Tito
H D M Lawry for Crown

Judgment: 30 November 2005

JUDGMENT OF THE COURT

CA406/04

A The appeal against conviction on counts 1, 2, and 3 is allowed.

B The convictions on these counts are quashed and a judgment and verdict of acquittal on each of these counts are entered.
CA412/04
C The appeal is dismissed.
CA424/04
D The appeal against conviction on counts 1, 2 and 3 is allowed.
E The convictions on these counts are quashed and a judgment and verdict of acquittal on each of these counts are entered.

REASONS

(Given by Chambers J)

Manufacture of methamphetamine in Huntly

[1] At approximately 8 am on 20 August 2003, the police executed a search warrant at commercial premises at 518 Great South Road on the outskirts of Huntly. When the police burst in, three people were found there. They were Tyrone Maihi, aged at the time 44, his long term partner, Jaine Tito, and Tyrone’s 18 year old son, Nahi. Tyrone Maihi had been renting the property for some months from an Auckland mechanic, Shane Piacun.
[2] Police carefully searched the property. They found chemicals and equipment used in the manufacture of the class A drug methamphetamine in the living area and storage area of the premises, in a van parked on the property, and in the vicinity of the building. They found empty bottles and blister packs of pseudoephedrine-based medicines, as well as clear plastic "point bags", glass tubes, lengths of plastic tubing, a plastic funnel, and a cooling pipe. They found in a caravan on the property a set of electronic scales with traces of methamphetamine. In a bag which Tyrone Maihi acknowledged to be his, the police found $1,900 in cash (in $20 notes). The property was surrounded by a high fence. It was guarded by a video surveillance camera. As well, there were dogs guarding the premises.
[3] Subsequently, the police searched other premises frequented by Tyrone and Nahi Maihi and Ms Tito. Further items consistent with the manufacture of methamphetamine were found at those premises.
[4] The police subsequently charged the three with a variety of offences under the Misuse of Drugs Act 1975. All three pleaded not guilty. The three were tried together. The jury returned the following verdicts:

(a) So far as Tyrone Maihi was concerned, guilty of manufacturing methamphetamine at 518 Great South Road (count 1), being in possession of equipment capable of being used for manufacturing methamphetamine with the intention that the equipment be used for that purpose (count 2), being in possession of precursor substances, namely hydrochloric acid, pseudoephedrine and toluene with the intention that those substances be used for manufacturing methamphetamine (count 3), and having in his possession a glass pipe for the purpose of consuming methamphetamine (count 6).

(b) So far as Ms Tito was concerned, as for her partner, save that she did not face a charge in respect of count 6.

(c) So far as Nahi Maihi was concerned, guilty of manufacturing methamphetamine at 518 Great South Road (count 1), being in possession of equipment capable of being used for manufacturing methamphetamine with the intention that the equipment be used for that purpose (count 2), being in possession of precursor substances, namely hydrochloric acid, pseudoephedrine and toluene with the intention that those substances be used for manufacturing methamphetamine (count 3), and having in his possession utensils, namely glass pipes, for the purpose of consuming methamphetamine (count 8). (These glass pipes were different from the glass pipe which was the subject of count 6 relating to Nahi’s father.)

[5] The jury were unable to agree on two counts. The first (count 4) was a charge that Tyrone Maihi, Ms Tito, and Nahi Maihi had in their possession at 64 Harris Street, Huntly, equipment capable of being used for manufacturing methamphetamine with the intention that the equipment be used for that purpose. The second (count 5) was a similar charge with respect to equipment found at 8A Shaw Street, Huntly. Although that charge was originally preferred against all three accused, the trial judge, Ronald Young J, discharged Nahi Maihi on that count during the course of the trial. With respect to the two counts on which the jury were unable to agree, the Crown advised that they did not seek a retrial. Accordingly, the accused were formally discharged on those two counts.
[6] With respect to the counts on which the jury did return verdicts of guilt, Ronald Young J sentenced Tyrone Maihi and Ms Tito to an overall sentence of seven years’ imprisonment. He sentenced Nahi Maihi to four years’ imprisonment.
[7] Tyrone Maihi now appeals against his conviction on count 1. He does not appeal against sentence, although, of course, if his appeal against conviction on count 1 were to succeed, the sentence imposed on counts 2 and 3 would need to be reconsidered.
[8] Ms Tito appealed against her conviction on counts 1, 2, and 3. Ms Tito also appealed against her sentence.
[9] Nahi Maihi originally challenged his conviction only on count 1. Following the oral hearing, we inquired of his counsel as to why Nahi Maihi was not also appealing against his conviction on counts 2 and 3. The reason for that inquiry was that it seemed to us that, if the challenge to the conviction on count 1 were made out, the convictions on counts 2 and 3 would be unsafe for the same reasons. Mr Dollimore, for Nahi Maihi, subsequently confirmed that Nahi Maihi did wish to appeal against his conviction on counts 2 and 3 as well.
[10] Nahi Maihi had also appealed against his sentence. But Mr Dollimore advised that, if the appeal against conviction were unsuccessful, Nahi Maihi would not pursue the sentence appeal.

Issues on the appeal

[11] Each appellant advances his or her appeal against conviction on the ground set out in s 385(1)(a) of the Crimes Act 1961, namely "that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence". All counsel were agreed that this ground is made out "if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the [appellant, and that it] is not enough that this Court might simply disagree with the verdict of the jury": R v Ramage [1985] 1 NZLR 392 at 393 (CA). That test has been followed on numerous occasions: see in particular R v H CA200/98 28 October 1998 and R v McDonald CA142/04 29 July 2004.
[12] Miss Kennedy raised another point on her client’s conviction appeal. She complained that count 1 of the indictment was deficient in that it alleged that the manufacture of methamphetamine at 518 Great South Road occurred "on or before the 20th August 2003". Miss Kennedy submitted that an indictment in that form was prejudicial, with the consequence that the conviction on that count should be quashed. She relied on R v Hughes [1998] 1 NZLR 409 (CA). We can dispose of this point very briefly. This case is quite different from Hughes, where the charge alleged the manufacture of morphine "on a day uncertain". The Crown in opening in that case had said that their expert witness "could not be more precise than to say that the equipment had been used to manufacture morphine at some stage within the past three years" (at 411). This court said that the indictment should have been framed "in such a way as to narrow the period to a finite one between set dates". That case is a long way from the present. In the present case, the Crown could not say that the manufacture had taken place on 20 August 2003, but it was clear at all times that the charge related to that day or a short time prior to it. No complaint was made about the form of the indictment before or at trial. Miss Kennedy could not point to any prejudice arising from the form of the indictment.
[13] So far as Ms Tito’s sentence appeal is concerned, Miss Kennedy submitted that the sentence was manifestly excessive, and in particular should have been lower than Tyrone Maihi’s.

Tyrone Maihi

[14] Tyrone Maihi’s sole ground of appeal was that there was insufficient evidence against him to sustain the conviction for manufacturing.

Evidence of manufacture of methamphetamine

[15] In the course of sentencing the appellants, Ronald Young J made the following remark:

It is, of course, difficult to know now the extent of the manufacture, given the information provided at trial. One can say with certainty that there were at least two cooks [i.e. manufacturing on two occasions]. One can say with certainty that at least somewhere between 16 and 22 grams of methamphetamine were produced. This could have produced somewhere, I think, between $15,000 and $25,000 worth of methamphetamine.

[16] All the appellants’ counsel accepted that the judge had been entitled to make those observations on the evidence – and indeed that his assertion that those matters could be said "with certainty" was not wrong. So this is a case where we know that manufacturing of methamphetamine occurred using the equipment found at 518 Great South Road.

Place of manufacture

[17] But did the manufacture, which undoubtedly took place, occur at 518 Great South Road? Of course, often the place of manufacture is not essential to a finding of guilt. But in this case it was. That is because this was a case where the police had no direct evidence of the appellants’ involvement; the case against each of them was entirely circumstantial. It was essential to the Crown case that the manufacture had taken place at 518 Great South Road and that no one but these appellants could have realistically been involved. In other words, if the appellants could show that a jury acting reasonably must have entertained a reasonable doubt as to whether manufacture did take place at 518 Great South Road, then the verdict of the jury would have to be set aside.
[18] We note in passing that Ronald Young J approached his summing up in exactly this way. He said that the first issue on which the jury would have to satisfy themselves was as to whether manufacturing took place at 518 Great South Road. None of the appellants’ counsel criticised the judge’s summing up.
[19] All the equipment and products needed to manufacture methamphetamine were found at 518 Great South Road. In particular, the police found open flasks containing methamphetamine in liquid form. As Mr Lawry, for the Crown, submitted, it was very unlikely that these containers would have been transported to 518 Great South Road in this state. It was accordingly open to the jury to infer that they had been used in the manufacturing process at the location where they were found.
[20] There was also evidence of empty medicine packets at various places around the property. These packets had obviously contained ingredients used in the manufacture of methamphetamine. Again, as Mr Lawry submitted, it was highly unlikely that the manufacturers, whoever they were, would have bothered bringing empty packets from another location, then to scatter them around this property.
[21] Mr Lawry further submitted that the fact that all these items were found in a variety of locations inside and outside the property strongly suggested that the manufacturing had taken place on site. If manufacturing had occurred elsewhere and all the items had then been brought to 518 Great South Road, it was highly unlikely that the items would have been found where they were. In those circumstances, it would be much more likely that the items would have been stored in the same place. We agree with Mr Lawry that that is powerful evidence from which the inference of manufacture at 518 Great South Road could be drawn.
[22] Then there was the video surveillance system, used to check who was wanting to enter the property before the gates were opened. Mr Piacun said that system had not been in place when he had occupied the property. The only logical inference must be that Tyrone Maihi had installed it. The fact of its installation was part of the circumstantial evidence from which the jury could conclude that drug manufacture was taking place at these premises.
[23] We conclude that there was ample evidence from which the jury could conclude that the manufacture of methamphetamine had occurred – and recently – at 518 Great South Road.
[24] We now turn to consider whether there was evidence implicating the appellants. In this regard, it is relevant to consider first what evidence was available to suggest that the manufacturer was someone other than one or more of the appellants.

An outsider responsible?

[25] The case for each of the appellants was that it had not been proved that he or she was involved in the manufacture of the methamphetamine. We suspect, from reading the notes of evidence, that the primary defence tactic at trial was to cast doubt on whether manufacturing had taken place at 518 Great South Road. Comparatively little attention was spent on who might have been involved if manufacture was shown to have occurred at that place. The reason for that is that the Crown had strong evidence that, if manufacturing had taken place at 518 Great South Road, then one or more of the appellants was almost certainly implicated in it. That was because the Crown rather deftly excluded the possibility of any outsider being involved.
[26] The previous owner and occupier was Mr Piacun. The Crown called him as a witness. He confirmed that he had rented the premises to Tyrone Maihi about five months before the raid. He confirmed that none of the drug paraphernalia found at the premises was his – and the defence did not challenge him on that. So that meant that the drug paraphernalia had to have come onto the premises during Tyrone Maihi’s tenancy. He further confirmed that the video surveillance system was not in place when he vacated the premises. That therefore could have been installed only by or at the direction of Tyrone Maihi. A powerful inference against him could be drawn from that installation.
[27] About six weeks prior to the police raid, Tyrone Maihi had sublet part of the commercial premises to one Edgar Arthur, an old friend. Mr Arthur gave evidence that he had made use of the workshop he informally let on an almost daily basis. He was asked whether any of the drug paraphernalia was his. He denied it, a denial not questioned by any of the appellants. His partner, Sharon Rakena, also gave evidence. She said that she had visited her partner’s premises from time to time, mostly to undertake cleaning up duties. She too denied that any of the drug paraphernalia found on the property was hers or her partner’s - an assertion again not challenged.
[28] Two of the three accused gave statements to the police. While neither admitted to being involved in manufacturing methamphetamine, neither suggested any other culprit. None of the appellants elected to give evidence, although Mr Gibson, for Tyrone Maihi, did call evidence. But there was no suggestion in that evidence or in the course of cross-examination by defence counsel of anyone else being involved.
[29] On the appeal before us, there was a shift of emphasis on the appellants’ part, with a suggestion, however obliquely made, that the Crown had not excluded the possibility of others’ involvement. We asked the appellants’ counsel to show us in the transcript where there had ever been a suggestion that others were involved. The only reference we were given came in the cross-examination of Mr Arthur, where he was asked whether a truck parked on the premises had been owned by a Mr Epere. Some incriminating material had been found in that truck. Mr Arthur replied that he "believed" the van was owned by Mr Epere, but that was as far as that was taken. There was no evidence that Mr Epere had driven the vehicle to the premises, or indeed had ever been on the premises.
[30] So we come to a position where there was a strong Crown case that the only people who could realistically have been involved in the manufacture of methamphetamine at 518 Great South Road were one or more of the three appellants.

But was Tyrone Maihi the one?

[31] Mr Gibson advised us that Tyrone Maihi’s case at trial "was advanced on the basis that the jury may have little trouble in accepting that [Tyrone Maihi] was in possession of the precursor materials and equipment [found] but there was no evidence of any manufacturing having occurred at the premises". (For reasons already given, we conclude that there was evidence – indeed, ample evidence – of manufacturing having occurred at 518 Great South Road.) So there was never any real dispute that Tyrone Maihi did have possession of the precursor materials and equipment; this explains why Tyrone Maihi does not appeal against his conviction on counts 2 and 3. So we have:

• A concession that the jury would have "little trouble in accepting" that Tyrone Maihi was in possession of the precursor materials and equipment found at 518 Great South Road; and

• Clear evidence that manufacturing had taken place at 518 Great South Road; and

• Evidence effectively excluding the involvement of anyone but the three accused.

[32] Put all that together, and it is clear that the jury could reasonably infer that Tyrone Maihi was involved in the manufacturing that had taken place in the premises of which he was the tenant. The jury would be entitled to conclude that either he was the manufacturer himself or, at the very least, he assisted in the manufacture by allowing his equipment and his precursor materials to be used.
[33] There was additional evidence implicating Tyrone Maihi. There was the video surveillance system, which must have been installed either by him or at his direction. Then there was the black bag, which he acknowledged to be his. This black bag contained $1,900 in cash. Tyrone Maihi admitted the cash was his and said that "it was for the rent". That may have been where the money was going to, but more important was where it had come from. The jury was entitled to infer, in light of all the evidence, that this large sum of cash represented proceeds of the sale of methamphetamine manufactured by Tyrone Maihi.
[34] In the same bag, the police found a glass case, inside which were some small plastic bags containing a white crystal substance, a pipe, a knife, and some empty plastic bags. When asked about the white substance and whose it was, Tyrone Maihi said, "Oh, that’s nothing." The significant point is, however, that he did not deny knowledge of these incriminating items in his bag.
[35] There was also evidence that Tyrone Maihi was a user of methamphetamine. That evidence makes it more likely that he was involved in the manufacture which had recently taken place in his premises.
[36] Tyrone Maihi’s appeal against conviction must fail.

Ms Tito

[37] At the hearing before us, Mr Lawry concentrated on showing us evidence from which it could be inferred that manufacturing had taken place at 518 Great South Road and from which it could also be inferred that no one but the three accused could realistically have been involved. That that was the focus of his submissions was perhaps understandable, particularly given the focus of Mr Gibson’s submissions for Tyrone Maihi. But, of course, it is essential that each appellant’s case be looked at separately. The fact that there may have been sufficient evidence to justify a finding of guilt of one accused does not mean that there was necessarily sufficient evidence to justify the finding of guilt of others. Following the hearing we invited further submissions. In particular, we asked the Crown to point us to:

(a) the evidence from which an inference can be drawn that Ms Tito was in joint possession of the equipment and the precursor substances found at 518 Great South Road;

(b) the evidence from which the inference could be drawn that Nahi Maihi was in joint possession of that equipment or those precursor substances;

(c) the evidence from which the inference could be drawn that Ms Tito was involved in the manufacture of the methamphetamine;

(d) the evidence from which the inference could be drawn that Nahi Maihi was involved in the manufacture of methamphetamine.

[38] Mr Lawry filed further submissions, for which we are grateful. He has set out for us the evidence on which the Crown relied, but our conclusion is that that evidence, even taken cumulatively, fails the Ramage test.
[39] First, Mr Lawry noted Ms Tito was present when the search warrant was executed. But that proves nothing as manufacturing was not in progress at that time.
[40] Secondly, he points to the fact that Ms Tito was regularly at the premises. That is so, and certainly one might draw an inference that she knew that manufacturing had taken place from time to time at those premises. But knowledge does not amount to participation. She was not the tenant of the premises. The premises were not her principal place of residence, notwithstanding the fact that she stayed overnight at 518 Great South Road quite often.
[41] Thirdly, it was said that she "assisted the principal" by "helping with associated tasks such as cooking". But cooking food for one’s partner does not make one a party to the manufacture of methamphetamine. Many drug manufacturers and dealers no doubt have partners or friends who cook their meals, either from time to time or regularly: that does not, of course, make those partners or friends parties to the illegal activities.
[42] Fourthly, Mr Lawry referred to the glass pipe used for smoking methamphetamine which was found in Ms Tito’s handbag. The presence of that glass pipe may enable one to draw an inference that Ms Tito was a user of methamphetamine, but it is but weak evidence on its own that she was involved in the manufacture. The pipe itself was not part of the manufacturing equipment.
[43] Finally, Mr Lawry pointed to the materials found at 8A Shaw Street, a property with which she was associated. But that evidence does not really assist the Crown for the following reasons. First, the jury could not agree on whether Ms Tito was in possession of the incriminating items found there, which weakens the probative force of this evidence. Secondly, there was no clear evidence that any of the Shaw Street materials had been used in the 518 Great South Road manufacture. More likely perhaps is the possibility they had been used in a Shaw Street manufacture – but no one was charged with manufacturing at that address. Thirdly, Tyrone Maihi also had a strong connection with Shaw Street. It could easily have been Tyrone Maihi who had taken the precursor substances, equipment and materials to Shaw Street or who had used them there.
[44] In our view, the jury’s verdict on count 1 must be quashed on the ground that it cannot be supported having regard to the evidence. A jury acting reasonably must have entertained a reasonable doubt as to the guilt of Ms Tito as a party to the Great South Road manufacture. She may well have known about Tyrone Maihi’s activities, but there must be a reasonable doubt as to her own involvement.
[45] The same reasoning applies to counts 2 and 3. There is no evidence that she was in possession of either the equipment or the precursor substances found at 518 Great South Road. She was not the tenant of the property. It was not her home. In her statement to the police, she gave the clear impression that she did what she was told at the Great South Road property. She said she had to cook all the meals there because she was told to do it "by Ed and Tyrone". She would cook for about 20 people at a time: a number of those people were "Black Power bros" associated with Tyrone Maihi. She also had to do everyone’s washing, "even the mechanics’". In such circumstances, there must be a reasonable doubt as to whether she did have joint control over the materials found.
[46] For these reasons, we conclude that the jury’s verdicts on counts 2 and 3 are also unsafe.
[47] It follows that Ms Tito’s convictions on counts 1, 2 and 3 must be quashed.
[48] In light of our decision on the conviction appeal, we do not need to consider Ms Tito’s appeal against sentence.

Nahi Maihi

[49] Mr Lawry, in his further submissions, detailed the following evidence against Nahi Maihi. First, he noted that Nahi Maihi was present when the search warrant was executed. But, as already noted with respect to Ms Tito, that proves nothing as manufacturing was not in progress at the time.
[50] Secondly, Mr Lawry points to the fact that Nahi Maihi stayed at the Great South Road address "occasionally". Mr Lawry submitted that Nahi Maihi had said that he slept at the property for about two months each year, but that lately he had been doing some building there and so had been sleeping in the shed. This evidence is really in the same category as the similar evidence as to Ms Tito’s presence at the premises. One might draw an inference that he knew that manufacturing methamphetamine had taken place or was taking place from time to time at the Great South Road address. But knowledge does not amount to participation.
[51] Thirdly, it was said that he, like Ms Tito, had "assisted the principal", in his case by undertaking some cleaning work. But there is no evidence that this cleaning work was anything to do with the manufacture of methamphetamine which his father had undertaken. There were two legitimate businesses being undertaken on the premises, quite apart from the illegal methamphetamine manufacture. His confession as to cleaning was undoubtedly related to cleaning associated with the legitimate businesses on the property. His stance after all was that he did not know of any methamphetamine manufacture having taken place. There was no independent evidence as to the cleaning activities he said he had undertaken.
[52] Fourthly, Mr Lawry referred to Nahi Maihi’s knowledge of red phosphorus and toluene, two of the chemicals located at the property. Again, that proves no more than that he may have known these products were on the property, but it by no means proves that Nahi, in addition to his father, also used them in the manufacture of methamphetamine.
[53] Finally, Mr Lawry pointed to the materials found at the Harris Street property, Nahi Maihi’s primary place of residence. But that evidence does not really assist the Crown for the same reasons that the evidence surrounding Shaw Street did not assist the Crown’s case against Ms Tito: see [43] above.
[54] Mr Lawry concluded his submissions thus: "His continuing involvement with the properties indicates his assistance or encouragement, if not active participation in, the manufacturing process." With respect, we disagree: the fact that a teenager lives in a parent’s house where the parent is undertaking an illegal activity does not, of itself, constitute either assistance or encouragement.
[55] In our view, for the same reasons why the jury’s verdict on count 1 against Ms Tito is unsafe, the verdict against Nahi Maihi on that count is also unsafe.
[56] And again, the reason which led to our conclusion that the jury’s verdicts on counts 2 and 3 against Ms Tito are unsafe applies equally in Nahi Maihi’s case on the same counts. There is no evidence that he was in possession of either the equipment or the precursor substances found at 518 Great South Road. It is mere speculation as to what his father’s reaction would have been had he tried to make use of those items.
[57] It follows that Nahi Maihi’s convictions on count 1, 2, and 3, like Ms Tito’s convictions on those counts, must be quashed.

[58] That leaves counts 8, the charge of having in his possession utensils, namely glass pipes, for the purpose of consuming methamphetamine. The jury found Nahi Maihi guilty on that count. The judge convicted and discharged him on that count. Nahi Maihi has not appealed against that conviction. It accordingly stands.

Solicitors:
Crown Law Office, Wellington

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[1]	At approximately 8 am on 20 August 2003, the police executed a search warrant at commercial premises at 518 Great South Road on the outskirts of Huntly. When the police burst in, three people were found there. They were Tyrone Maihi, aged at the time 44, his long term partner, Jaine Tito, and Tyrone’s 18 year old son, Nahi. Tyrone Maihi had been renting the property for some months from an Auckland mechanic, Shane Piacun.
[2]	Police carefully searched the property. They found chemicals and equipment used in the manufacture of the class A drug methamphetamine in the living area and storage area of the premises, in a van parked on the property, and in the vicinity of the building. They found empty bottles and blister packs of pseudoephedrine-based medicines, as well as clear plastic "point bags", glass tubes, lengths of plastic tubing, a plastic funnel, and a cooling pipe. They found in a caravan on the property a set of electronic scales with traces of methamphetamine. In a bag which Tyrone Maihi acknowledged to be his, the police found $1,900 in cash (in $20 notes). The property was surrounded by a high fence. It was guarded by a video surveillance camera. As well, there were dogs guarding the premises.
[3]	Subsequently, the police searched other premises frequented by Tyrone and Nahi Maihi and Ms Tito. Further items consistent with the manufacture of methamphetamine were found at those premises.
[4]	The police subsequently charged the three with a variety of offences under the Misuse of Drugs Act 1975. All three pleaded not guilty. The three were tried together. The jury returned the following verdicts:

[5]	The jury were unable to agree on two counts. The first (count 4) was a charge that Tyrone Maihi, Ms Tito, and Nahi Maihi had in their possession at 64 Harris Street, Huntly, equipment capable of being used for manufacturing methamphetamine with the intention that the equipment be used for that purpose. The second (count 5) was a similar charge with respect to equipment found at 8A Shaw Street, Huntly. Although that charge was originally preferred against all three accused, the trial judge, Ronald Young J, discharged Nahi Maihi on that count during the course of the trial. With respect to the two counts on which the jury were unable to agree, the Crown advised that they did not seek a retrial. Accordingly, the accused were formally discharged on those two counts.
[6]	With respect to the counts on which the jury did return verdicts of guilt, Ronald Young J sentenced Tyrone Maihi and Ms Tito to an overall sentence of seven years’ imprisonment. He sentenced Nahi Maihi to four years’ imprisonment.
[7]	Tyrone Maihi now appeals against his conviction on count 1. He does not appeal against sentence, although, of course, if his appeal against conviction on count 1 were to succeed, the sentence imposed on counts 2 and 3 would need to be reconsidered.
[8]	Ms Tito appealed against her conviction on counts 1, 2, and 3. Ms Tito also appealed against her sentence.
[9]	Nahi Maihi originally challenged his conviction only on count 1. Following the oral hearing, we inquired of his counsel as to why Nahi Maihi was not also appealing against his conviction on counts 2 and 3. The reason for that inquiry was that it seemed to us that, if the challenge to the conviction on count 1 were made out, the convictions on counts 2 and 3 would be unsafe for the same reasons. Mr Dollimore, for Nahi Maihi, subsequently confirmed that Nahi Maihi did wish to appeal against his conviction on counts 2 and 3 as well.
[10]	Nahi Maihi had also appealed against his sentence. But Mr Dollimore advised that, if the appeal against conviction were unsuccessful, Nahi Maihi would not pursue the sentence appeal.

[11]	Each appellant advances his or her appeal against conviction on the ground set out in s 385(1)(a) of the Crimes Act 1961, namely "that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence". All counsel were agreed that this ground is made out "if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the [appellant, and that it] is not enough that this Court might simply disagree with the verdict of the jury": R v Ramage [1985] 1 NZLR 392 at 393 (CA). That test has been followed on numerous occasions: see in particular R v H CA200/98 28 October 1998 and R v McDonald CA142/04 29 July 2004.
[12]	Miss Kennedy raised another point on her client’s conviction appeal. She complained that count 1 of the indictment was deficient in that it alleged that the manufacture of methamphetamine at 518 Great South Road occurred "on or before the 20th August 2003". Miss Kennedy submitted that an indictment in that form was prejudicial, with the consequence that the conviction on that count should be quashed. She relied on R v Hughes [1998] 1 NZLR 409 (CA). We can dispose of this point very briefly. This case is quite different from Hughes, where the charge alleged the manufacture of morphine "on a day uncertain". The Crown in opening in that case had said that their expert witness "could not be more precise than to say that the equipment had been used to manufacture morphine at some stage within the past three years" (at 411). This court said that the indictment should have been framed "in such a way as to narrow the period to a finite one between set dates". That case is a long way from the present. In the present case, the Crown could not say that the manufacture had taken place on 20 August 2003, but it was clear at all times that the charge related to that day or a short time prior to it. No complaint was made about the form of the indictment before or at trial. Miss Kennedy could not point to any prejudice arising from the form of the indictment.
[13]	So far as Ms Tito’s sentence appeal is concerned, Miss Kennedy submitted that the sentence was manifestly excessive, and in particular should have been lower than Tyrone Maihi’s.

[17]	But did the manufacture, which undoubtedly took place, occur at 518 Great South Road? Of course, often the place of manufacture is not essential to a finding of guilt. But in this case it was. That is because this was a case where the police had no direct evidence of the appellants’ involvement; the case against each of them was entirely circumstantial. It was essential to the Crown case that the manufacture had taken place at 518 Great South Road and that no one but these appellants could have realistically been involved. In other words, if the appellants could show that a jury acting reasonably must have entertained a reasonable doubt as to whether manufacture did take place at 518 Great South Road, then the verdict of the jury would have to be set aside.
[18]	We note in passing that Ronald Young J approached his summing up in exactly this way. He said that the first issue on which the jury would have to satisfy themselves was as to whether manufacturing took place at 518 Great South Road. None of the appellants’ counsel criticised the judge’s summing up.
[19]	All the equipment and products needed to manufacture methamphetamine were found at 518 Great South Road. In particular, the police found open flasks containing methamphetamine in liquid form. As Mr Lawry, for the Crown, submitted, it was very unlikely that these containers would have been transported to 518 Great South Road in this state. It was accordingly open to the jury to infer that they had been used in the manufacturing process at the location where they were found.
[20]	There was also evidence of empty medicine packets at various places around the property. These packets had obviously contained ingredients used in the manufacture of methamphetamine. Again, as Mr Lawry submitted, it was highly unlikely that the manufacturers, whoever they were, would have bothered bringing empty packets from another location, then to scatter them around this property.
[21]	Mr Lawry further submitted that the fact that all these items were found in a variety of locations inside and outside the property strongly suggested that the manufacturing had taken place on site. If manufacturing had occurred elsewhere and all the items had then been brought to 518 Great South Road, it was highly unlikely that the items would have been found where they were. In those circumstances, it would be much more likely that the items would have been stored in the same place. We agree with Mr Lawry that that is powerful evidence from which the inference of manufacture at 518 Great South Road could be drawn.
[22]	Then there was the video surveillance system, used to check who was wanting to enter the property before the gates were opened. Mr Piacun said that system had not been in place when he had occupied the property. The only logical inference must be that Tyrone Maihi had installed it. The fact of its installation was part of the circumstantial evidence from which the jury could conclude that drug manufacture was taking place at these premises.
[23]	We conclude that there was ample evidence from which the jury could conclude that the manufacture of methamphetamine had occurred – and recently – at 518 Great South Road.
[24]	We now turn to consider whether there was evidence implicating the appellants. In this regard, it is relevant to consider first what evidence was available to suggest that the manufacturer was someone other than one or more of the appellants.

[25]	The case for each of the appellants was that it had not been proved that he or she was involved in the manufacture of the methamphetamine. We suspect, from reading the notes of evidence, that the primary defence tactic at trial was to cast doubt on whether manufacturing had taken place at 518 Great South Road. Comparatively little attention was spent on who might have been involved if manufacture was shown to have occurred at that place. The reason for that is that the Crown had strong evidence that, if manufacturing had taken place at 518 Great South Road, then one or more of the appellants was almost certainly implicated in it. That was because the Crown rather deftly excluded the possibility of any outsider being involved.
[26]	The previous owner and occupier was Mr Piacun. The Crown called him as a witness. He confirmed that he had rented the premises to Tyrone Maihi about five months before the raid. He confirmed that none of the drug paraphernalia found at the premises was his – and the defence did not challenge him on that. So that meant that the drug paraphernalia had to have come onto the premises during Tyrone Maihi’s tenancy. He further confirmed that the video surveillance system was not in place when he vacated the premises. That therefore could have been installed only by or at the direction of Tyrone Maihi. A powerful inference against him could be drawn from that installation.
[27]	About six weeks prior to the police raid, Tyrone Maihi had sublet part of the commercial premises to one Edgar Arthur, an old friend. Mr Arthur gave evidence that he had made use of the workshop he informally let on an almost daily basis. He was asked whether any of the drug paraphernalia was his. He denied it, a denial not questioned by any of the appellants. His partner, Sharon Rakena, also gave evidence. She said that she had visited her partner’s premises from time to time, mostly to undertake cleaning up duties. She too denied that any of the drug paraphernalia found on the property was hers or her partner’s - an assertion again not challenged.
[28]	Two of the three accused gave statements to the police. While neither admitted to being involved in manufacturing methamphetamine, neither suggested any other culprit. None of the appellants elected to give evidence, although Mr Gibson, for Tyrone Maihi, did call evidence. But there was no suggestion in that evidence or in the course of cross-examination by defence counsel of anyone else being involved.
[29]	On the appeal before us, there was a shift of emphasis on the appellants’ part, with a suggestion, however obliquely made, that the Crown had not excluded the possibility of others’ involvement. We asked the appellants’ counsel to show us in the transcript where there had ever been a suggestion that others were involved. The only reference we were given came in the cross-examination of Mr Arthur, where he was asked whether a truck parked on the premises had been owned by a Mr Epere. Some incriminating material had been found in that truck. Mr Arthur replied that he "believed" the van was owned by Mr Epere, but that was as far as that was taken. There was no evidence that Mr Epere had driven the vehicle to the premises, or indeed had ever been on the premises.
[30]	So we come to a position where there was a strong Crown case that the only people who could realistically have been involved in the manufacture of methamphetamine at 518 Great South Road were one or more of the three appellants.

[32]	Put all that together, and it is clear that the jury could reasonably infer that Tyrone Maihi was involved in the manufacturing that had taken place in the premises of which he was the tenant. The jury would be entitled to conclude that either he was the manufacturer himself or, at the very least, he assisted in the manufacture by allowing his equipment and his precursor materials to be used.
[33]	There was additional evidence implicating Tyrone Maihi. There was the video surveillance system, which must have been installed either by him or at his direction. Then there was the black bag, which he acknowledged to be his. This black bag contained $1,900 in cash. Tyrone Maihi admitted the cash was his and said that "it was for the rent". That may have been where the money was going to, but more important was where it had come from. The jury was entitled to infer, in light of all the evidence, that this large sum of cash represented proceeds of the sale of methamphetamine manufactured by Tyrone Maihi.
[34]	In the same bag, the police found a glass case, inside which were some small plastic bags containing a white crystal substance, a pipe, a knife, and some empty plastic bags. When asked about the white substance and whose it was, Tyrone Maihi said, "Oh, that’s nothing." The significant point is, however, that he did not deny knowledge of these incriminating items in his bag.
[35]	There was also evidence that Tyrone Maihi was a user of methamphetamine. That evidence makes it more likely that he was involved in the manufacture which had recently taken place in his premises.
[36]	Tyrone Maihi’s appeal against conviction must fail.

[38]	Mr Lawry filed further submissions, for which we are grateful. He has set out for us the evidence on which the Crown relied, but our conclusion is that that evidence, even taken cumulatively, fails the Ramage test.
[39]	First, Mr Lawry noted Ms Tito was present when the search warrant was executed. But that proves nothing as manufacturing was not in progress at that time.
[40]	Secondly, he points to the fact that Ms Tito was regularly at the premises. That is so, and certainly one might draw an inference that she knew that manufacturing had taken place from time to time at those premises. But knowledge does not amount to participation. She was not the tenant of the premises. The premises were not her principal place of residence, notwithstanding the fact that she stayed overnight at 518 Great South Road quite often.
[41]	Thirdly, it was said that she "assisted the principal" by "helping with associated tasks such as cooking". But cooking food for one’s partner does not make one a party to the manufacture of methamphetamine. Many drug manufacturers and dealers no doubt have partners or friends who cook their meals, either from time to time or regularly: that does not, of course, make those partners or friends parties to the illegal activities.
[42]	Fourthly, Mr Lawry referred to the glass pipe used for smoking methamphetamine which was found in Ms Tito’s handbag. The presence of that glass pipe may enable one to draw an inference that Ms Tito was a user of methamphetamine, but it is but weak evidence on its own that she was involved in the manufacture. The pipe itself was not part of the manufacturing equipment.
[43]	Finally, Mr Lawry pointed to the materials found at 8A Shaw Street, a property with which she was associated. But that evidence does not really assist the Crown for the following reasons. First, the jury could not agree on whether Ms Tito was in possession of the incriminating items found there, which weakens the probative force of this evidence. Secondly, there was no clear evidence that any of the Shaw Street materials had been used in the 518 Great South Road manufacture. More likely perhaps is the possibility they had been used in a Shaw Street manufacture – but no one was charged with manufacturing at that address. Thirdly, Tyrone Maihi also had a strong connection with Shaw Street. It could easily have been Tyrone Maihi who had taken the precursor substances, equipment and materials to Shaw Street or who had used them there.
[44]	In our view, the jury’s verdict on count 1 must be quashed on the ground that it cannot be supported having regard to the evidence. A jury acting reasonably must have entertained a reasonable doubt as to the guilt of Ms Tito as a party to the Great South Road manufacture. She may well have known about Tyrone Maihi’s activities, but there must be a reasonable doubt as to her own involvement.
[45]	The same reasoning applies to counts 2 and 3. There is no evidence that she was in possession of either the equipment or the precursor substances found at 518 Great South Road. She was not the tenant of the property. It was not her home. In her statement to the police, she gave the clear impression that she did what she was told at the Great South Road property. She said she had to cook all the meals there because she was told to do it "by Ed and Tyrone". She would cook for about 20 people at a time: a number of those people were "Black Power bros" associated with Tyrone Maihi. She also had to do everyone’s washing, "even the mechanics’". In such circumstances, there must be a reasonable doubt as to whether she did have joint control over the materials found.
[46]	For these reasons, we conclude that the jury’s verdicts on counts 2 and 3 are also unsafe.
[47]	It follows that Ms Tito’s convictions on counts 1, 2 and 3 must be quashed.
[48]	In light of our decision on the conviction appeal, we do not need to consider Ms Tito’s appeal against sentence.

[49]	Mr Lawry, in his further submissions, detailed the following evidence against Nahi Maihi. First, he noted that Nahi Maihi was present when the search warrant was executed. But, as already noted with respect to Ms Tito, that proves nothing as manufacturing was not in progress at the time.
[50]	Secondly, Mr Lawry points to the fact that Nahi Maihi stayed at the Great South Road address "occasionally". Mr Lawry submitted that Nahi Maihi had said that he slept at the property for about two months each year, but that lately he had been doing some building there and so had been sleeping in the shed. This evidence is really in the same category as the similar evidence as to Ms Tito’s presence at the premises. One might draw an inference that he knew that manufacturing methamphetamine had taken place or was taking place from time to time at the Great South Road address. But knowledge does not amount to participation.
[51]	Thirdly, it was said that he, like Ms Tito, had "assisted the principal", in his case by undertaking some cleaning work. But there is no evidence that this cleaning work was anything to do with the manufacture of methamphetamine which his father had undertaken. There were two legitimate businesses being undertaken on the premises, quite apart from the illegal methamphetamine manufacture. His confession as to cleaning was undoubtedly related to cleaning associated with the legitimate businesses on the property. His stance after all was that he did not know of any methamphetamine manufacture having taken place. There was no independent evidence as to the cleaning activities he said he had undertaken.
[52]	Fourthly, Mr Lawry referred to Nahi Maihi’s knowledge of red phosphorus and toluene, two of the chemicals located at the property. Again, that proves no more than that he may have known these products were on the property, but it by no means proves that Nahi, in addition to his father, also used them in the manufacture of methamphetamine.
[53]	Finally, Mr Lawry pointed to the materials found at the Harris Street property, Nahi Maihi’s primary place of residence. But that evidence does not really assist the Crown for the same reasons that the evidence surrounding Shaw Street did not assist the Crown’s case against Ms Tito: see [43] above.
[54]	Mr Lawry concluded his submissions thus: "His continuing involvement with the properties indicates his assistance or encouragement, if not active participation in, the manufacturing process." With respect, we disagree: the fact that a teenager lives in a parent’s house where the parent is undertaking an illegal activity does not, of itself, constitute either assistance or encouragement.
[55]	In our view, for the same reasons why the jury’s verdict on count 1 against Ms Tito is unsafe, the verdict against Nahi Maihi on that count is also unsafe.
[56]	And again, the reason which led to our conclusion that the jury’s verdicts on counts 2 and 3 against Ms Tito are unsafe applies equally in Nahi Maihi’s case on the same counts. There is no evidence that he was in possession of either the equipment or the precursor substances found at 518 Great South Road. It is mere speculation as to what his father’s reaction would have been had he tried to make use of those items.
[57]	It follows that Nahi Maihi’s convictions on count 1, 2, and 3, like Ms Tito’s convictions on those counts, must be quashed.