	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2006 >> [2006] NZCA 371

The Queen v Yorston [2006] NZCA 371 (21 December 2006)

Last Updated: 30 January 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA195/06

THE QUEEN

v

ALAN MAGNUS YORSTON

Hearing: 15 November 2006

Court: Chambers, Goddard and Gendall JJ

Counsel: P F Chambers for Appellant
H D M Lawry for Crown

Judgment: 21 December 2006 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

[1] The appellant was convicted by a jury in the High Court at Auckland on three counts: possession of methamphetamine for supply (ss 6(1)(f) and (2)(a) Misuse of Drugs Act 1975); possession of the precursor substances Pseudoephedrine and acetone for the purpose of manufacturing methamphetamine (s 12A Misuse of Drugs Act); and possession of a caustic solution capable of being used in the manufacture of methamphetamine (s 12A(2)(a) Misuse of Drugs Act). He was sentenced to a total of four years and five months imprisonment. He appeals against conviction on a number of grounds and against sentence on the ground that it is manifestly excessive, as it was based on a miscalculation of the amount of methamphetamine involved.

Background facts

[2] The appellant was visiting commercial premises at 16 Minnie Street, Newton when a search warrant was executed at those premises on 13 April 2005 at 7.30am. The warrant was directed to articles relating to the cultivation or possession of a Class C controlled drug and to a mobile generator and trailer but was not limited to these articles. It authorised the police to search not only the premises at 16 Minnie Street but also any vehicle at the property.
[3] The appellant had arrived at the property some five minutes before the Police and parked his black Toyota Supra motor vehicle at the address. When asked what vehicle he had come in, he identified his car and was told by Constable Chapman that it would be searched under the search warrant. He was asked for his car keys, which he produced. On opening the boot, in the appellant’s presence, Constable Chapman saw what appeared to be a 20 litre container with liquid inside, which the appellant said was acetone given to him the night before to either use himself or to dispose of. The Constable also saw two or three other unmarked containers in the boot containing liquids. He then asked the appellant to accompany him to the police station for an interview but the appellant refused. He was advised that his vehicle would be searched under s 18(2) Misuse of Drugs Act 1975 and he was cautioned. However the search of the car was suspended until Detective Franklin of the police clandestine laboratory team arrived, which he did with his team at about 9.30am. Two containers of acetone and an adapted plastic squeegee bottle containing a caustic substance were subsequently removed from the boot of the appellant’s car. Inside the vehicle, behind the passenger seat, Detective Franklin found a plastic black bag containing 51 empty blister packs (each with 10 cells) of Contac NT 90mg Ppseudoephedrine HCL. On the back seat he found a black satchel-type bag, inside of which were a number of plastic snap-lock deal bags containing a crystalline substance and some larger bags. There were also coffee filters in the satchel and a number of documents belonging to the appellant.
[4] At the time the items and the briefcase were being removed from the appellant’s car he was being interviewed at Auckland Central Police Station by Constable Chapman and the officer-in-charge of the case, Detective Sergeant Edwards. He was told that various items had been removed from his vehicle and advised of his rights and cautioned. He acknowledged that the small container of acetone in the boot was his but said that the other larger container had been given to him the night before by someone who thought he might be able to use it in his work as a builder. He denied any involvement with any of the other items located in the car and denied any knowledge of the black canvas bag found on the back seat.
[5] Twenty snap-lock bags of crystalline powder and a bag containing larger crystals located in the black satchel were later analysed by an ESR forensic analyst,
Dr Somerville, and found to contain a total of almost 25g of methamphetamine with an indicated minimum purity level of 50%.
[6] During the search of the building a number of other items were also located, including a black canvas sports bag containing plastic slide-lock bags. This was found under a staircase inside the building by Constable Magnusson, who showed it to Detective Lamont, then acting as officer in charge while Detective Sergeant Edwards was at Auckland Central Police Station. That particular bag was not however seized as an exhibit.
[7] The main issue at trial was whether the black canvas bag containing the methamphetamine found in the appellant’s car was his or had been placed there by some other person; inferentially a police officer or some unidentified third party. A related issue was whether the police officers who executed the search warrant at
16 Minnie Street had a prior interest in the appellant, arising from previous dealings with him.
[8] In his evidence the appellant said of the black canvas bag found in his car and of the personal items in it:

... It is as though someone has swept my car and put the whole lot into a bag.
When you say that are you saying there were items personal to you that the police had said they had found in the bag?... yes most definitely.
What was your reaction upon hearing this?... It was no surprise at that stage.
Why not?... Because once I had learned of this bag and its contents it was obvious to me someone or persons had placed it there.
Where had those personal items come from?... there was a diamond tester, a single set of digital scales that were mine. I have an interest in buying jewellery and diamonds in the likes of the Trade and Exchange. A jewellers eyeglass was taken from my personal belongings at Central for some unknown reason.
And there were other items also found in the bag belonging to you personally?... yes registered vehicle ID forms I always keep in the glove box and a lot of people do. Other documents or receipts that would have been in the console or even on the back seat or even on the floor. Some of them even had scribbling on them like I had used them to jot notes on.

The appeal

[9] A number of grounds of appeal were advanced: failure by the police and the Crown to make proper disclosure; failure to call Constable Magnusson to give evidence; erroneously leaving count one to the jury; erroneously leaving count three to the jury; excessive interventions by the Judge; treating jury questions as irrelevant; and defects in the summing-up.

Failure to make proper disclosure

[10] Mr Chambers, for the appellant, raised as his first ground of appeal that the police and the Crown had failed to make proper disclosure of documents said to show that the police had had a prior interest in the appellant, arising from previous dealings with him. Despite Mr Chambers’ advocacy before us, we fail to see how any such disclosure, even if the documents exist, would have assisted the appellant in his defence. What did it matter if the police had a prior interest in him? What the appellant had to provide, looking at the matter practically, was some sort of reasonable explanation as to how methampethamine and other drug paraphernalia came to be found in his car. His explanation appears to have been that the drugs were planted, either by an unidentified person in the five minutes before the police arrived at 7.30 am or by the police themselves. Mr Chambers never put to any of the police officers, however, that they or one of their number had planted the drugs.
[11] We therefore have real doubt as to the relevance of the alleged material which Mr Chambers says the police should have provided. But, even if this material were relevant, there is nothing in this complaint. First, Mr Lawry, who appeared both at trial and before us for the Crown, advised that he had offered full access to police files to Mr Chambers a fortnight before trial and had also invited Mr Chambers to seek specific disclosure, if he saw fit. Priestley J, the trial judge, recorded that these offers had been made in a minute of 5 April 2006. Mr Chambers did not take up that offer. It is too late now to be making this complaint when the opportunity was available prior to trial to seek further disclosure if defence counsel thought it appropriate.
[12] Further, all the police officers who allegedly had a "prior interest" in the appellant were called as Crown witnesses. Accordingly, Mr Chambers had full opportunity to cross-examine them on those matters.

Failure to call Constable Magnusson

[13] On the first day of trial Mr Chambers had requested that evidence relating to the finding of the black canvas sports bag under the staircase inside the building at
16 Minnie Street be called from Detective Lamont and Constable Magnusson.
Mr Lawry undertook to make both police officers available for cross-examination, if required.
[14] Towards the end of the trial Detective Lamont was made available for cross-examination. Mr Chambers questioned him about his tasking of Constable Magnusson to search and make a record of items taken by her from the lower part of the building and about his checking and signing off of her job sheets in relation to that. Detective Lamont confirmed that amongst items located in the building underneath the staircase on the ground floor had been a black canvas bag containing a quantity of plastic ziplock bags. He said he recalled seeing the bag and its contents as it was located but could not recall whether the bag he sighted was the same as the bag uplifted by Detective Franklin from the appellant’s car and exhibited in the booklet of photographs produced at trial. His cross-examination ended on the following note:

In the absence of any definite proof as to how the bag found under the staircase looked other than the job sheet from Constable Magnusson and your having sighted that bag is the photo exhibited at 9 similar to that bag or different from that bag..... Photo 9 depicts a black bag. I can only say that I recall Constable Magnusson bringing to my attention and pointing out to me a bag located under the stairs which contained plastic ziplock bags.

[15] After Detective Lamont completed his evidence, Mr Chambers made no request for Constable Magnusson to be called and she was not called.
[16] As is clear, Mr Chambers made some headway in establishing that there was a canvas bag located elsewhere than in the appellant’s vehicle, and that the police had not seen fit to place any evidence about it before the Court. Having explored the matter to this extent, it was for him to pursue Mr Lawry’s offer to call Constable Magnusson if he wished to also question her, but he did not do so. There was probably good reason from the defence perspective in not pursuing the request that the Crown call Constable Magnusson. Having made some headway with Detective Franklin, which left open the possibility that the canvas bag under the staircase might have been the same as the canvas bag allegedly found in the back seat of the appellant’s car, the real risk was that Constable Magnusson might have completely undone the progress made by being able to say definitively that the bags were different.

Leaving count one to the jury

[17] Under this head of appeal Mr Chambers submitted that Priestley J had erred by failing to recognise, prior to count one going to the jury, that the evidence of the ESR scientist, Dr Robyn Somerville, rendered count one in the indictment "flawed and invalid". He said this failure had prejudiced the appellant by denying him the opportunity of applying for a discharge under s 347 of the Crimes Act 1961. His argument was premised on the fact that the tests conducted by Dr Somerville were not specifically directed to assessing the precise purity level of the drug. Thus it could not be said with certainty how much pure methampethamine there was in the 25.88g of powder located.
[18] This argument raises two points. First, there was no dispute at trial that Dr Somerville’s evidence that the crystalline powder contained methamphetamine was correct and the quantity of methamphetamine for conviction purposes was irrelevant. The Crown did not rely on the statutory presumption of supply but rather on the circumstances in which the methamphetamine was found which, when regarded in their totality, pointed strongly toward a situation of possession for supply. In terms of quantity of the drug, all that the Crown had to prove through
Dr Somerville was that the material found in the appellant’s possession contained methamphetamine.
[19] Secondly, it was not for Priestley J to assess the worth of Dr Somerville’s evidence. That was for the jury. Mr Chambers did not make an application under s 347. Even if he had, there is no right of appeal from a decision made under that section. It would have been quite improper for the Judge to have refused to leave this count to the jury for the reason now given.

Leaving count three to the jury

[20] This ground of appeal concerned count three in the indictment, which charged the appellant with possession of a caustic solution capable of being used in the manufacture of methamphetamine. The submission was made that Detective Franklin, in his evidence, had expressed uncertainty about the indicated use of the caustic substance in the adapted plastic container found in the boot of the appellant’s vehicle, and accepted that the item could have uses other than in the manufacture of methamphetamine. Mr Chambers submitted that on the basis of this uncertain evidence, necessary criminal knowledge on the part of the appellant was not established and Priestley J should have made this clear to the jury in his summing-up.
[21] However, contrary to Mr Chambers’ interpretation of the tenor of Detective Franklin’s evidence about the modified plastic container and its contents, the Detective was firm that its likely use would be in the manufacture of methamphetamine. He said his initial reaction on seeing the adapted plastic container was as to its similarity to items commonly used in the finishing process of methamphetamine manufacture. His acknowledgement that it could be used in some other part of the manufacturing process, and his acceptance that it could have been used for a purpose totally unconnected with the manufacture of methamphetamine, were no more than fair and common-sense concessions which did not detract from the firmness of his primary view.
[22] The Detective’s evidence was fairly stated and it was for the jury to assess in the context of the evidence as a whole and against the reasonable possibility that the caustic substance in the adapted container had an innocent use unconnected with methamphetamine manufacture. However, as the caustic soda and container were found in the appellant’s vehicle together with 51 empty blister packs of pseudoephedrine-based tablets, a set of digital scales, a glass methamphetamine pipe, empty snap-lock bags, and almost 26g of methamphetamine, it was open to the jury to conclude beyond reasonable doubt that the caustic soda was in the appellant’s possession for use during some stage of the manufacturing process.
[23] The issue of likely use was for the jury and the summing-up in relation to count three was appropriate. In this regard, Priestley J directed the jury that if they were satisfied the appellant was in possession of the various substances and materials, they had to then be sure that he intended those substances and materials to be used as part of the process of producing or manufacturing methamphetamine.

Interventions by the trial judge

[24] Mr Chambers submitted that Priestley J had erred by intervening a total of 51 times throughout the course of the trial and whilst he was cross-examining the various witnesses. He asserted that the majority of these interventions were unnecessary and may have created a negative image of him as counsel and caused prejudice to the appellant. He further asserted that the real damage caused by the interventions was that they occurred just as he was leading to a critical point in cross-examination.
[25] A reading of the transcript of evidence establishes that there were a number of interventions by Priestley J during the five days of evidence. An unsatisfactory aspect is that the substance of the interventions has not been recorded in many instances, with the intervention simply shown as "The Court: Intervenes". Where the For the Record method of recording is used, no problem arises for this Court on appeal, as everything said in court is available to us. Where, as in the present case, however, the traditional method of recording evidence is used, it is essential that trial Judges keep at least a brief record of the substance of any objection or intervention and the outcome of it. Where Judges are providing the transcript to juries, as is now very common, notes of these objections, if conducted in the absence of the jury, should be recorded in a separate transcript, which is available only to the Judge and counsel. That appears not to have been done in this case.
[26] However, although numerous, the interventions do not fall into the category of impinging unfairly on the defence case or encroaching to an unacceptable extent upon the role of counsel and the jury, as in R v Fotu [1995] 3 NZLR 129. On many occasions the interventions, although unrecorded, were clearly necessary to prevent an irrelevant or objectionable or potentially dangerous line of questioning. Intervention by a Judge in performing the role of assisting a jury for the purpose of clarification of evidence or to restrain improper or prejudicial lines of questioning has to be assessed by reference to the core issues at trial and the need to focus the jury’s attention on those. Mr Lawry submitted that Priestley J clearly felt it necessary to address the issue of irrelevant lines of questioning by Mr Chambers and this is reflected in his summing up under the sub-heading "Sideshows". In that part of the summing up Priestley J took pains to ensure the jury were focussed on the real issues arising and on whether the Crown had proved beyond reasonable doubt that the materials and substances in question were in the appellant’s possession.
[27] Leaving aside the omission to record the substance of all of the interventions made, we are - on balance - satisfied that the interventions were necessary and did not put the appellant’s right to a fair trial at risk.

Treating jury questions as irrelevant

[28] During the course of the trial, the foreman of the jury had on several occasions passed notes to the Judge, recording questions the jury wanted answered. Before us, Mr Chambers submitted that Priestley J had erred in the way he dealt with these notes from the foreman. He complained that the Judge had treated the jury’s questions as largely irrelevant, thereby implying to the jury that their questions played no part in their deliberations. He said this caused significant prejudice to the appellant.
[29] However, the questions in issue and the appropriate answers to them were on each occasion discussed in chambers by the Judge with counsel in the usual way before agreed answers were given to the jury in open Court and transcribed as part of the trial record. As a further precaution, on 7 April 2006 (by way of example), Priestley J, after answering a series of three questions he had discussed with counsel, enquired of both Mr Lawry and Mr Chambers whether they had any difficulties with the answers he had just given. Both replied that they did not.
[30] On the face of the written record of questions asked by the jury during the trial and the answers given to those questions, and in light of counsel’s participation in and concurrence with answers given, there is no substance in the assertion that Priestley J treated the jury’s questions as irrelevant. This ground of appeal must fail.

Dr Somerville’s evidence

[31] Mr Chambers submitted that Priestley J had made a number of errors in his summing up. Mr Chambers had identified none of these when asked by the Judge at the conclusion of the summing up as to whether there were any matters about which counsel had concern.
[32] His first complaint related to the way in which the Judge had summed up concerning Dr Somerville’s evidence. He submitted that the Judge should have pointed out the flaws in her evidence, particularly the fact that the tests she had conducted were not specifically designed to assess the purity of the drug.
[33] We make three points concerning this submission. First, it is not the trial Judge’s job to provide his or her assessment of the worth of any particular piece of evidence. The Judge may, in his or her discretion, comment. A Judge who fails to comment does not commit an appealable error of law, provided all appropriate legal directions have been given and Crown and defence cases have been adequately put.
[34] Secondly, what the purity of the drug was was not relevant to the issues the jury had to determine. All that mattered was that the powder contained methampethamine. That it did was not in dispute.
[35] Thirdly, we think it clear, in any event, that Mr Chambers has misunderstood Dr Somerville’s evidence. The two screening tests that she conducted established that the powder and crystalline material in the appellant’s car contained methamphetamine of a purity of at least 50%. If that material and powder had contained less than 50% of methamphetamine this would not have been confirmed by the second test she carried out. Dr Somerville’s evidence in re-examination set the matter out clearly:

... The confirmation technique used for the 24 samples indicate from my experience that the substances were at least 50% pure methamphetamine hydrochloride.
So it is the screening test which will detect the presence of methamphetamine in any sample right down to about .5 to 1% is that right?... from my experience yes.
But are you saying nonetheless from your experience the confirmation tests on these samples indicated a purity level of about 50%?... a minimum.
So if you had a sample which was methamphetamine which was only 25% pure and the rest of it was some other substance like a white powder the confirmation test would not be sufficient to test methamphetamine?... It would not meet my standards of proof.

[36] There is accordingly nothing in this first complaint. We record that Mr Chambers did apparently attempt to raise this issue after the jury’s verdict by way of an application to arrest judgment under s 371(2) of the Crimes Act. Priestley J dismissed that application. He was clearly right to do so; the application was entirely misconceived.

Absence of fingerprint evidence

[37] Mr Chambers’ second complaint about the summing up related to the way in which the Judge dealt with the absence of evidence relating to fingerprints on any of the items seized by the police. Mr Chambers submitted that the judge had "erred in fact and law by failing to give proper weight to the absence of fingerprints on items seized by the police and alleged to belong to the appellant and to the inadequate security around the appellant’s vehicle subsequent to his arrest and transport to Auckland Central Police Station".
[38] We make two comments on this submission. First, the submission reveals a lack of understanding of the trial Judge’s role. It is not for the trial Judge when sitting with a jury to assess evidence and the weight to be given to evidence. That is the jury’s role.
[39] Secondly, in so far as this submission implies that the Judge was bound to comment on the perceived weakness of this part of the Crown’s case, the submission is unsound for the same reason we gave above at [33]. A trial Judge is not bound to express his or her views about any aspect of the evidence. He or she may choose to comment, but a failure to comment is not an appealable error.
[40] The issue of fingerprints had arisen during the trial. Mr Chambers had cross-examined Detective Franklin on the topic of whether items of interest had been fingerprinted. He had replied that he did not know whether any of the items seized from the appellant’s car had been fingerprinted by the scene of crime officer. This evidence led to the jury asking "whether all of the contents of the black bag and the used pill packets were fingerprinted and if not why not?"
[41] Priestley J gave a preliminary direction on this and other evidential issues on 5 April 2006. He advised the jury in some detail that they were not in the role of detectives or investigators but were required to deal with the issues solely on the basis of what the Crown and the accused placed before them by way of evidence and specifically directed them as follows:

So it may well be that with some of those questions you asked, the answers might be something wasn’t done or there is no evidence on that topic at all. And if that is the case that is the basis on which you will have to deal with it.

[42] Subsequently, in further directions given on 7 April 2006 Priestley J answered the jury’s question about fingerprint evidence by directing them:

We have heard from Mr Lawry, and it is now agreed between counsel, that none of the items in the black bag or indeed the blister packs on the floor were fingerprinted and it is not for either me or you to inquire as to how the police go about investigating matters. Again it is quite simply an issue of you reaching your verdict on the basis of the evidence which you have heard in Court."

[43] Counsel at the time had agreed those responses. We too accept that they were appropriate responses to the jury’s question. In light of those responses, there was no need for the Judge to do more than he did on this topic in his summing up.

One or two black canvas bags?

[44] A further criticism of the summing up was directed to the adequacy of Priestley J’s directions to the jury on the issue of whether there was only one black canvas travel bag found at 16 Minnie Street but in two different locations, or whether there were two bags found. Expressly, Mr Chambers argued that Priestley J had erred in fact and law by:

... failing to make note, in his directions to the jury, of the discrepancy between Police evidence in chief as to an itemised record of all documents found in the appellant’s vehicle being in the black canvas travel bag and that evidence obtained from cross examination of documents present in photos of the appellant’s vehicle that either were not part of that itemised record, or were some of the documents alleged to have been found in the black canvas travel bag, thereby severely prejudicing the appellant, amounting to a miscarriage of justice.

[45] Mr Chambers suggested that the above matters, together with the absence of any fingerprint evidence on the items seized from the appellant’s car, supported the appellant’s position that the evidence may have been planted in order to link him to the drugs.
[46] We note, however, that Priestley J met with counsel after they had made their closing addresses and before he summed-up to the jury for the specific purpose of clarifying with Mr Chambers what the defence position in relation to the black canvas bag was. Mr Chambers acknowledged before us that Priestley J had asked him whether it was the defence position that there was evidence of only one black canvas travel bag but in two different locations and that he had answered this in the affirmative. He said the defence position was however open to the possibility of either a police planting or a third party planting, but conceded that a planting by the police had never been squarely put by the defence, either in cross-examination, or by the appellant in his evidence, or by himself in closing address.
[47] In his directions to the jury Priestley J set the issue out as follows:

Be careful too about the evidence you have heard from Detective Lamont about a black bag being discovered under the stairs inside the building. We have not seen that black bag. There is no photograph of it. We do not know how it compares with the black bag found on the back seat of Mr Yorston’s car. If you got the impression from Mr Chambers’s closing address on Friday there was only one black bag on the premises then that is an impression about which there is no real clear evidence. The black bag which occupies centre stage in this case is the black bag and its contents found on the seat of Mr Yorston’s vehicle. Mr Chambers did not go so far as to suggest that some unknown person grabbed hold of a black bag found inside the premises under the stairs and stuffed it full of methamphetamine and pseudoephedrine and various other items including Mr Yorston’s documents and then placed it on the backseat of the car to be found. Certainly there has been evidence about the black bag on the seat of the car and possibly another black bag found on the premises. Be cautious members of the jury over being confused by the very marginal evidence about a black bag found under the stairs about which we know virtually nothing.

[48] When summarising the case for the defence later in his summing-up Priestley J further said:

For the accused Mr Chambers made a number of points. He said to you that Detective Chapman’s diary and job sheet made no reference to his glancing at or noticing the black bag in the car. The only reference to a black bag says Mr Chambers was in the job sheet of Constable Magnison in reference to the black bag under the stairs. The defence suggests there was another black canvas bag at Minnie Street. Mr Chambers suggests to you that the evidence of Mr Yorston is safer and that the documents were not in the bag nor was the bag in the car when Mr Yorston arrived at 16 Minnie Street. Mr Chambers points out the accused agreed right at the outset that the acetone found in the boot was his and he had a lawful and legitimate reason for having that acetone and that there was no challenge by the Crown to Mr Yorston’s evidence that he was a builder and that this says
Mr Chambers is a legitimate reason for him having acetone in his possession.
Mr Chambers says the evidence about the security of Mr Yorston’s vehicle at 16 Minnie Street is inadequate and there is no satisfactory evidence that it was adequately secured. As to count three says Mr Chambers, nobody seems to know what the contraption or the device was and Detective Constable Franklin couldn’t shed any light on it either.

[49] In light of this attempt to clarify the defence position as to whether only one black canvas bag was found at the property by the police and planted in the appellant’s car after he was taken to Auckland Central Police Station; or whether in the five minute period prior to the police arriving at 16 Minnie Street some unknown third party had planted a similar black canvas bag in the appellant’s boot, Priestley J’s directions to the jury were clearly adequate and would have left the jury in no doubt that both possibilities were open for their consideration. The note of caution he sounded about the lack of clear evidence on the issue of only one bag or two bags, was appropriate and accurately reflected the defence equivocation over this.

Sentence appeal

[50] The sentence of four years and five months imprisonment comprised concurrent sentences of four years and five months imprisonment for possession for supply of the methamphetamine found in the appellant’s possession, and sentences of two and half years imprisonment and 12 months imprisonment for possession of precursor substances and a caustic solution. The appeal against sentence is directed to the sentence of four years five months imprisonment for possession for supply.
[51] The appeal was predicated on the erroneous view taken of Dr Somerville’s evidence and the belief that the purity of the drug found in the appellant’s possession was only 0.5% of the total quantity of drug found. In reality however, the quantity for sentencing purposes is to be regarded as at least 25g of methamphetamine which, on the basis of this Court’s decision in R v Fatu [2006] 2 NZLR 72, places the appellant comfortably within band two, particularly when regard is had to the presence of the other indicators of methamphetamine manufacture and dealing. Priestley J referred to both the decision of Fatu and the earlier decision of R v Arthur [2005] 3 NZLR 739 in his sentencing notes, and to the 3-9 year start point indicated in those cases for the amount of methamphetamine found. He referred also to Ms Somerville’s evidence suggesting that the methamphetamine in the appellant’s possession was of at least 50% purity, and thus of significant commercial value. No exception can therefore be taken to Priestley J’s approach and the appeal against sentence must also fail.

Conclusion

[52] The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2006/371.html

[2]	The appellant was visiting commercial premises at 16 Minnie Street, Newton when a search warrant was executed at those premises on 13 April 2005 at 7.30am. The warrant was directed to articles relating to the cultivation or possession of a Class C controlled drug and to a mobile generator and trailer but was not limited to these articles. It authorised the police to search not only the premises at 16 Minnie Street but also any vehicle at the property.
[3]	The appellant had arrived at the property some five minutes before the Police and parked his black Toyota Supra motor vehicle at the address. When asked what vehicle he had come in, he identified his car and was told by Constable Chapman that it would be searched under the search warrant. He was asked for his car keys, which he produced. On opening the boot, in the appellant’s presence, Constable Chapman saw what appeared to be a 20 litre container with liquid inside, which the appellant said was acetone given to him the night before to either use himself or to dispose of. The Constable also saw two or three other unmarked containers in the boot containing liquids. He then asked the appellant to accompany him to the police station for an interview but the appellant refused. He was advised that his vehicle would be searched under s 18(2) Misuse of Drugs Act 1975 and he was cautioned. However the search of the car was suspended until Detective Franklin of the police clandestine laboratory team arrived, which he did with his team at about 9.30am. Two containers of acetone and an adapted plastic squeegee bottle containing a caustic substance were subsequently removed from the boot of the appellant’s car. Inside the vehicle, behind the passenger seat, Detective Franklin found a plastic black bag containing 51 empty blister packs (each with 10 cells) of Contac NT 90mg Ppseudoephedrine HCL. On the back seat he found a black satchel-type bag, inside of which were a number of plastic snap-lock deal bags containing a crystalline substance and some larger bags. There were also coffee filters in the satchel and a number of documents belonging to the appellant.
[4]	At the time the items and the briefcase were being removed from the appellant’s car he was being interviewed at Auckland Central Police Station by Constable Chapman and the officer-in-charge of the case, Detective Sergeant Edwards. He was told that various items had been removed from his vehicle and advised of his rights and cautioned. He acknowledged that the small container of acetone in the boot was his but said that the other larger container had been given to him the night before by someone who thought he might be able to use it in his work as a builder. He denied any involvement with any of the other items located in the car and denied any knowledge of the black canvas bag found on the back seat.
[5]	Twenty snap-lock bags of crystalline powder and a bag containing larger crystals located in the black satchel were later analysed by an ESR forensic analyst, Dr Somerville, and found to contain a total of almost 25g of methamphetamine with an indicated minimum purity level of 50%.
[6]	During the search of the building a number of other items were also located, including a black canvas sports bag containing plastic slide-lock bags. This was found under a staircase inside the building by Constable Magnusson, who showed it to Detective Lamont, then acting as officer in charge while Detective Sergeant Edwards was at Auckland Central Police Station. That particular bag was not however seized as an exhibit.
[7]	The main issue at trial was whether the black canvas bag containing the methamphetamine found in the appellant’s car was his or had been placed there by some other person; inferentially a police officer or some unidentified third party. A related issue was whether the police officers who executed the search warrant at 16 Minnie Street had a prior interest in the appellant, arising from previous dealings with him.
[8]	In his evidence the appellant said of the black canvas bag found in his car and of the personal items in it:

[10]	Mr Chambers, for the appellant, raised as his first ground of appeal that the police and the Crown had failed to make proper disclosure of documents said to show that the police had had a prior interest in the appellant, arising from previous dealings with him. Despite Mr Chambers’ advocacy before us, we fail to see how any such disclosure, even if the documents exist, would have assisted the appellant in his defence. What did it matter if the police had a prior interest in him? What the appellant had to provide, looking at the matter practically, was some sort of reasonable explanation as to how methampethamine and other drug paraphernalia came to be found in his car. His explanation appears to have been that the drugs were planted, either by an unidentified person in the five minutes before the police arrived at 7.30 am or by the police themselves. Mr Chambers never put to any of the police officers, however, that they or one of their number had planted the drugs.
[11]	We therefore have real doubt as to the relevance of the alleged material which Mr Chambers says the police should have provided. But, even if this material were relevant, there is nothing in this complaint. First, Mr Lawry, who appeared both at trial and before us for the Crown, advised that he had offered full access to police files to Mr Chambers a fortnight before trial and had also invited Mr Chambers to seek specific disclosure, if he saw fit. Priestley J, the trial judge, recorded that these offers had been made in a minute of 5 April 2006. Mr Chambers did not take up that offer. It is too late now to be making this complaint when the opportunity was available prior to trial to seek further disclosure if defence counsel thought it appropriate.
[12]	Further, all the police officers who allegedly had a "prior interest" in the appellant were called as Crown witnesses. Accordingly, Mr Chambers had full opportunity to cross-examine them on those matters.

[17]	Under this head of appeal Mr Chambers submitted that Priestley J had erred by failing to recognise, prior to count one going to the jury, that the evidence of the ESR scientist, Dr Robyn Somerville, rendered count one in the indictment "flawed and invalid". He said this failure had prejudiced the appellant by denying him the opportunity of applying for a discharge under s 347 of the Crimes Act 1961. His argument was premised on the fact that the tests conducted by Dr Somerville were not specifically directed to assessing the precise purity level of the drug. Thus it could not be said with certainty how much pure methampethamine there was in the 25.88g of powder located.
[18]	This argument raises two points. First, there was no dispute at trial that Dr Somerville’s evidence that the crystalline powder contained methamphetamine was correct and the quantity of methamphetamine for conviction purposes was irrelevant. The Crown did not rely on the statutory presumption of supply but rather on the circumstances in which the methamphetamine was found which, when regarded in their totality, pointed strongly toward a situation of possession for supply. In terms of quantity of the drug, all that the Crown had to prove through Dr Somerville was that the material found in the appellant’s possession contained methamphetamine.
[19]	Secondly, it was not for Priestley J to assess the worth of Dr Somerville’s evidence. That was for the jury. Mr Chambers did not make an application under s 347. Even if he had, there is no right of appeal from a decision made under that section. It would have been quite improper for the Judge to have refused to leave this count to the jury for the reason now given.

[20]	This ground of appeal concerned count three in the indictment, which charged the appellant with possession of a caustic solution capable of being used in the manufacture of methamphetamine. The submission was made that Detective Franklin, in his evidence, had expressed uncertainty about the indicated use of the caustic substance in the adapted plastic container found in the boot of the appellant’s vehicle, and accepted that the item could have uses other than in the manufacture of methamphetamine. Mr Chambers submitted that on the basis of this uncertain evidence, necessary criminal knowledge on the part of the appellant was not established and Priestley J should have made this clear to the jury in his summing-up.
[21]	However, contrary to Mr Chambers’ interpretation of the tenor of Detective Franklin’s evidence about the modified plastic container and its contents, the Detective was firm that its likely use would be in the manufacture of methamphetamine. He said his initial reaction on seeing the adapted plastic container was as to its similarity to items commonly used in the finishing process of methamphetamine manufacture. His acknowledgement that it could be used in some other part of the manufacturing process, and his acceptance that it could have been used for a purpose totally unconnected with the manufacture of methamphetamine, were no more than fair and common-sense concessions which did not detract from the firmness of his primary view.
[22]	The Detective’s evidence was fairly stated and it was for the jury to assess in the context of the evidence as a whole and against the reasonable possibility that the caustic substance in the adapted container had an innocent use unconnected with methamphetamine manufacture. However, as the caustic soda and container were found in the appellant’s vehicle together with 51 empty blister packs of pseudoephedrine-based tablets, a set of digital scales, a glass methamphetamine pipe, empty snap-lock bags, and almost 26g of methamphetamine, it was open to the jury to conclude beyond reasonable doubt that the caustic soda was in the appellant’s possession for use during some stage of the manufacturing process.
[23]	The issue of likely use was for the jury and the summing-up in relation to count three was appropriate. In this regard, Priestley J directed the jury that if they were satisfied the appellant was in possession of the various substances and materials, they had to then be sure that he intended those substances and materials to be used as part of the process of producing or manufacturing methamphetamine.

[24]	Mr Chambers submitted that Priestley J had erred by intervening a total of 51 times throughout the course of the trial and whilst he was cross-examining the various witnesses. He asserted that the majority of these interventions were unnecessary and may have created a negative image of him as counsel and caused prejudice to the appellant. He further asserted that the real damage caused by the interventions was that they occurred just as he was leading to a critical point in cross-examination.
[25]	A reading of the transcript of evidence establishes that there were a number of interventions by Priestley J during the five days of evidence. An unsatisfactory aspect is that the substance of the interventions has not been recorded in many instances, with the intervention simply shown as "The Court: Intervenes". Where the For the Record method of recording is used, no problem arises for this Court on appeal, as everything said in court is available to us. Where, as in the present case, however, the traditional method of recording evidence is used, it is essential that trial Judges keep at least a brief record of the substance of any objection or intervention and the outcome of it. Where Judges are providing the transcript to juries, as is now very common, notes of these objections, if conducted in the absence of the jury, should be recorded in a separate transcript, which is available only to the Judge and counsel. That appears not to have been done in this case.
[26]	However, although numerous, the interventions do not fall into the category of impinging unfairly on the defence case or encroaching to an unacceptable extent upon the role of counsel and the jury, as in R v Fotu [1995] 3 NZLR 129. On many occasions the interventions, although unrecorded, were clearly necessary to prevent an irrelevant or objectionable or potentially dangerous line of questioning. Intervention by a Judge in performing the role of assisting a jury for the purpose of clarification of evidence or to restrain improper or prejudicial lines of questioning has to be assessed by reference to the core issues at trial and the need to focus the jury’s attention on those. Mr Lawry submitted that Priestley J clearly felt it necessary to address the issue of irrelevant lines of questioning by Mr Chambers and this is reflected in his summing up under the sub-heading "Sideshows". In that part of the summing up Priestley J took pains to ensure the jury were focussed on the real issues arising and on whether the Crown had proved beyond reasonable doubt that the materials and substances in question were in the appellant’s possession.
[27]	Leaving aside the omission to record the substance of all of the interventions made, we are - on balance - satisfied that the interventions were necessary and did not put the appellant’s right to a fair trial at risk.

[28]	During the course of the trial, the foreman of the jury had on several occasions passed notes to the Judge, recording questions the jury wanted answered. Before us, Mr Chambers submitted that Priestley J had erred in the way he dealt with these notes from the foreman. He complained that the Judge had treated the jury’s questions as largely irrelevant, thereby implying to the jury that their questions played no part in their deliberations. He said this caused significant prejudice to the appellant.
[29]	However, the questions in issue and the appropriate answers to them were on each occasion discussed in chambers by the Judge with counsel in the usual way before agreed answers were given to the jury in open Court and transcribed as part of the trial record. As a further precaution, on 7 April 2006 (by way of example), Priestley J, after answering a series of three questions he had discussed with counsel, enquired of both Mr Lawry and Mr Chambers whether they had any difficulties with the answers he had just given. Both replied that they did not.
[30]	On the face of the written record of questions asked by the jury during the trial and the answers given to those questions, and in light of counsel’s participation in and concurrence with answers given, there is no substance in the assertion that Priestley J treated the jury’s questions as irrelevant. This ground of appeal must fail.

[31]	Mr Chambers submitted that Priestley J had made a number of errors in his summing up. Mr Chambers had identified none of these when asked by the Judge at the conclusion of the summing up as to whether there were any matters about which counsel had concern.
[32]	His first complaint related to the way in which the Judge had summed up concerning Dr Somerville’s evidence. He submitted that the Judge should have pointed out the flaws in her evidence, particularly the fact that the tests she had conducted were not specifically designed to assess the purity of the drug.
[33]	We make three points concerning this submission. First, it is not the trial Judge’s job to provide his or her assessment of the worth of any particular piece of evidence. The Judge may, in his or her discretion, comment. A Judge who fails to comment does not commit an appealable error of law, provided all appropriate legal directions have been given and Crown and defence cases have been adequately put.
[34]	Secondly, what the purity of the drug was was not relevant to the issues the jury had to determine. All that mattered was that the powder contained methampethamine. That it did was not in dispute.
[35]	Thirdly, we think it clear, in any event, that Mr Chambers has misunderstood Dr Somerville’s evidence. The two screening tests that she conducted established that the powder and crystalline material in the appellant’s car contained methamphetamine of a purity of at least 50%. If that material and powder had contained less than 50% of methamphetamine this would not have been confirmed by the second test she carried out. Dr Somerville’s evidence in re-examination set the matter out clearly:

[37]	Mr Chambers’ second complaint about the summing up related to the way in which the Judge dealt with the absence of evidence relating to fingerprints on any of the items seized by the police. Mr Chambers submitted that the judge had "erred in fact and law by failing to give proper weight to the absence of fingerprints on items seized by the police and alleged to belong to the appellant and to the inadequate security around the appellant’s vehicle subsequent to his arrest and transport to Auckland Central Police Station".
[38]	We make two comments on this submission. First, the submission reveals a lack of understanding of the trial Judge’s role. It is not for the trial Judge when sitting with a jury to assess evidence and the weight to be given to evidence. That is the jury’s role.
[39]	Secondly, in so far as this submission implies that the Judge was bound to comment on the perceived weakness of this part of the Crown’s case, the submission is unsound for the same reason we gave above at [33]. A trial Judge is not bound to express his or her views about any aspect of the evidence. He or she may choose to comment, but a failure to comment is not an appealable error.
[40]	The issue of fingerprints had arisen during the trial. Mr Chambers had cross-examined Detective Franklin on the topic of whether items of interest had been fingerprinted. He had replied that he did not know whether any of the items seized from the appellant’s car had been fingerprinted by the scene of crime officer. This evidence led to the jury asking "whether all of the contents of the black bag and the used pill packets were fingerprinted and if not why not?"
[41]	Priestley J gave a preliminary direction on this and other evidential issues on 5 April 2006. He advised the jury in some detail that they were not in the role of detectives or investigators but were required to deal with the issues solely on the basis of what the Crown and the accused placed before them by way of evidence and specifically directed them as follows:

[45]	Mr Chambers suggested that the above matters, together with the absence of any fingerprint evidence on the items seized from the appellant’s car, supported the appellant’s position that the evidence may have been planted in order to link him to the drugs.
[46]	We note, however, that Priestley J met with counsel after they had made their closing addresses and before he summed-up to the jury for the specific purpose of clarifying with Mr Chambers what the defence position in relation to the black canvas bag was. Mr Chambers acknowledged before us that Priestley J had asked him whether it was the defence position that there was evidence of only one black canvas travel bag but in two different locations and that he had answered this in the affirmative. He said the defence position was however open to the possibility of either a police planting or a third party planting, but conceded that a planting by the police had never been squarely put by the defence, either in cross-examination, or by the appellant in his evidence, or by himself in closing address.
[47]	In his directions to the jury Priestley J set the issue out as follows: