The Queen v Sinclair-Beere [2008] NZCA 165 (13 June 2008)

Last Updated: 20 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA595/07

[2008] NZCA 165

THE QUEEN

v

EMMANUELLE CHANTELLE SINCLAIR-BEERE

Hearing: 28 May 2008

Court: Glazebrook, Chisholm and Cooper JJ

Counsel: P F Wicks and B M Kight for Appellant
M D Downs for Crown

Judgment: 13 June 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1] Ms Sinclair-Beere and her partner, Mr J Evans (also known as Jay Reid), were convicted in the High Court at Auckland on charges of manufacturing methamphetamine and possessing precursor substances and equipment with the intention that these be used to manufacture the drug.
[2] Ms Sinclair-Beere appeals against her conviction on the basis that the following matters have caused a miscarriage of justice:

(a) The failure of her trial counsel, Ms Pecotic, to call a witness;

(b) Stevens J’s answer to a jury question.

[3] We deal with each of these grounds in turn but, before doing so, we set out the factual background in more detail.
[4] For completeness, we note that the other grounds advanced in the Notice of Appeal were abandoned before the hearing.

Background

[5] The police searched Ms Sinclair-Beere’s home on 9 February 2005. Ms Sinclaire-Beere and her partner, Mr Evans, were home. When the police arrived, Mr Evans was attempting to pour toluene down the laundry sink. Ms Sinclair-Beere was in the bedroom where empty pill packets and a notebook with entries describing the manufacture of methamphetamine were found.
[6] The police found precursor substances, chemicals and equipment in the laundry, kitchen, dining room and master bedroom. Some items were in plain view. Others were in areas of common use, such as kitchen cupboards. Among the items found at the address was a glass baking dish which contained traces of pseudoephedrine, ephedrine and methamphetamine. Ms Sinclair-Beere’s fingerprints were on that dish, along with those of Mr Evans. A one layered solution containing toluene and pseudoephedrine was also located.
[7] Evidence was given at trial by an ESR scientist that pseudoephedrine was actively being extracted at the house from preparations including pseudoephedrine. He also said that all the required chemicals and equipment necessary to manufacture methamphetamine were present at the house. Further, methamphetamine was present in some of the liquids and solutions tested which came from various items in the house. He was of the view that methamphetamine had been manufactured in the house at some time prior to the arrival of the police.

Failure to call witness

[8] Ms Sinclair-Beere’s first ground of appeal is that Dr Powell, an independent scientist who did some tests on her property in the week of 24 February 2005, should have been called as a witness.
[9] Trial counsel received Dr Powell’s preliminary report a few days before the trial. It set out his preliminary findings in the following manner:

A full report detailing our findings is currently being prepared. In the meantime, our preliminary findings are:

• tests of air quality with a portable Photoionisation Detector equipped with a 10.6 eV ultraviolet lamp and having a lower limit of detection of 100 ppb (parts per billion) show that problematic volatile compounds of the types commonly associated with clandestine manufacture of methamphetamine are either absent from interior airspaces, or are present at concentrations that are lower than those that are currently regarded as safe for long-term exposure.

Swab testing of surfaces using presumptive test methods shows that:

• traces of cannabinoids, which are components of the plant Cannabis sativa, a Class C Controlled Drug, are present on the extractor fan in the kitchen;
• amphetamine, methamphetamine, and diacetylmorphine (heroin) are either absent from the surfaces tested or are present at levels lower than the detection limit of the test method used.

[10] Ms Pecotic advised Ms Sinclair-Beere against calling Dr Powell. She was of the view that the evidence lacked probative value. This was because the scientist went to the premises some 15 days after the police and ESR scientists had examined it. Further, what had been found at the property during the police search was beyond sensible dispute. In addition, Dr Powell had detected cannabis at the property. There was a risk, in Ms Pecotic’s opinion, that this would colour the jury’s view of Ms Sinclair-Beere as a “druggie”.
[11] It is accepted by Ms Sinclair-Beere that, although she had originally wanted Dr Powell as a witness, she had not, in the end, instructed Ms Pecotic to call him. Mr Wicks, for Ms Sinclair-Beere, submits, nonetheless, that Ms Pecotic should have contacted Dr Powell before advising her not to call him. He also submits that Dr Powell’s evidence would have been of substantial assistance to her case such that the failure to call him caused a miscarriage of justice. In Mr Wicks’ submission, the evidence could have raised the reasonable possibility that manufacturing had occurred somewhere other than the property and by someone other than Ms Sinclair-Beere.
[12] We assume that, if Ms Pecotic had contacted Dr Powell, he would have given her the same information as he gave in evidence before us. In the course of his evidence, Dr Powell accepted that he could not exclude the possibility that methamphetamine had been manufactured in the house. Dr Powell also accepted that cleaning could impair his ability to detect contaminants and that he could not say if the property had been cleaned before his inspection. He did say that he was fairly sure that the extractor fan (where he had found traces of cannabis) had not been cleaned. He also said that normal cleaning can fail to remove stains of the type left by methamphetamine manufacture.
[13] Dr Powell also accepted that he had not examined the garage. He was shown one of the photographs (number 18) that had been produced at trial. This showed a portable heating element on an outside table on what appeared to be a porch. Dr Powell accepted that methamphetamine could have been made outside. While he said that it was possible that volatiles could drift inside depending on wind direction, he said that they would be at low concentrations. He did accept that it was possible that his testing could detect such low levels but his tone suggested this to be very unlikely. (We note here that the ESR scientist said at trial that the heat source shown in photograph 18 would have been adequate to generate the heat required for the reaction process.)
[14] We also heard from Ms Sinclair-Beere’s mother. She could not rule out the possibility that the house had been cleaned by a housemate of her daughter’s who stayed in the property on and off when he was back from Saudi Arabia.
[15] In our view, the evidence of Dr Powell would have added little, if anything, of benefit to the defence. Dr Powell could not rule out the possibility that manufacturing had taken place at the premises. In particular, if manufacturing had taken place outside (and photograph 18 could indicate this as a possibility) or in the garage, his testing would not have picked this up. The house could also have been cleaned. The police had found the equipment and chemicals necessary to manufacture methamphetamine spread around the house. They had also found traces of methamphetamine on some of the equipment, including on a baking tray on which were found Ms Sinclair-Beere’s fingerprints.
[16] We accept the Crown submission that the evidence of what was found at the house pointed inexorably to the conclusion that methamphetamine had been manufactured there and that the inhabitants of the house must have been aware of this. We also accept the submission that it is inherently unlikely that the methamphetamine was manufactured off-site and then all the equipment and chemicals transferred to the property and scattered throughout the house. Further, Ms Pecotic was entitled to consider there to be a risk of prejudice in Dr Powell’s evidence relating to cannabis in the extractor fan.
[17] Ms Pecotic’s advice not to call evidence of such little probative value when it might cause harm to the defence was advice that was clearly open to her. Her advice was accepted by Ms Sinclair-Beere. That she now regrets doing so is no reason for allowing the appeal and giving her a chance to run the case in a different manner. This is not one of those rare cases where, despite counsel having given quite proper advice that was accepted by the accused, there is nonetheless a miscarriage of justice – see R v Sungsuwan [2006] 1 NZLR 730 at [67] – [80] (SC).

Answer to jury question

[18] Ms Sinclair-Beere also contends that the Judge’s answer to a question by the jury was inappropriate. The jury asked:

If an accused knew the manufacturing of methamphetamine was happening and turned a blind eye, does this make that person a party?

[19] The Judge answered the question by repeating his direction as to parties that he had given earlier in his summing up. He then added:

[4] Mere presence at the scene of an offence is not of itself enough for secondary liability as a party. It is no criminal offence to stand by, a mere passive spectator of a crime. Non-interference to prevent a crime is not itself a crime.

[5] Voluntary presence at the commission of an offence may be evidence of encouragement. To establish liability there must be both an intention to encourage and encouragement in fact.

[6] Encouragement may be given by words or conduct. Although mere presence at the scene of the offence is not enough to establish liability for either aiding or abetting, deliberate presence intended to signify approval of the acts of the principal may support an inference of encouragement in fact.

[20] Mr Wicks submitted that the Judge should not have elaborated on the parties direction as the Crown case was that Ms Sinclair-Beere and her partner were both principals.
[21] There is no suggestion that either the direction on parties or the elaboration contained any error of law. As this is the case and as the elaboration was aimed at the very point the jury raised, there can be no question of a miscarriage of justice.

Result

[22] The appeal is dismissed.

Solicitors:
Swarbrick Beck, Auckland for Appellant
Crown Law Office, Wellington