Fulop v R [2011] NZCA 499 (29 September 2011)

Court of Appeal of New Zealand

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Fulop v R [2011] NZCA 499 (29 September 2011)

Last Updated: 6 October 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA92/2011 [2011] NZCA 499

BETWEEN SUSANNA JULIANNA FULOP Appellant

AND THE QUEEN Respondent

Hearing: 15 September 2011

Court: Randerson, MacKenzie and Asher JJ

Counsel: S D Cassidy and S Blake for Appellant A M Toohey for Respondent

Judgment: 29 September 2011 at 2.30 p.m.

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] On Thursday, 18 June 2009 the appellant, Susanna Fulop, was living with her boyfriend Shane Hannon at 125 McRobbie Road, Karaka. Following a Police search equipment and substances indicating a methamphetamine manufacturing operation were found in the house. Ms Fulop was charged, together with Mr Hannon, with manufacturing methamphetamine. They both gave evidence. Mr Hannon admitted manufacturing methamphetamine and said that Ms Fulop had nothing to do with it. Ms Fulop gave evidence to the same effect. Despite this evidence the jury convicted Ms Fulop on one count of manufacturing methamphetamine, three counts of possession of precursor substances, materials and equipment, and one count of possession of pipes. Ms Fulop appeals against her convictions with the exception of the possession of pipes.

Grounds of appeal

[2] Mr Cassidy for Ms Fulop submitted that the verdicts were unsupported by the evidence and unreasonable, and for that reason under s 385(1)(a) of the Crimes Act 1961 the verdicts were unsafe and the appeal should be allowed. He analysed the evidence and submitted that it was not sufficient to support an inference of guilt beyond reasonable doubt. There was, he submitted, an inference equally open to the jury that Ms Fulop was innocent and that any indications of her involvement in the manufacturing process arose from her being a permanent occupant in the house involved in cooking and tidying, rather than in the manufacturing process. He submitted that there was no evidence to support a conclusion that she had the necessary degree of control to constitute possession of the precursors. It was accepted that she was in possession of the pipe.

What the Police found

[3] Ms Fulop and Mr Hannon occupied two rooms in the house, effectively a bedroom and a spare room, the latter being called by the Police “Room D”. When the house was searched the chemicals toluene, Fuelite and acetone were found. Iodine and hypophosphorous acid were also located. These chemicals are all used in the manufacture of methamphetamine. Also found was a considerable quantity of equipment including a steam distiller which contained methamphetamine, tall glasses, Pyrex dishes, coffee filters, a pH meter and a range of flasks and glassware.
[4] It was the opinion of the ESR scientist that the manufacture of methamphetamine had taken place in the kitchen, a bathroom used by Ms Fulop and Mr Hannon and Room D.

The evidence implicating Ms Fulop

[5] The chemicals and equipment used in the manufacture were present in the rooms that she and Mr Hannon occupied. Ms Fulop used the kitchen, bathroom and Room D, where the manufacture of methamphetamine had taken place. Her fingerprints were found on the following items:

• (a) Exhibit K05 – a glass Pyrex dish
• (b) Exhibit B04.3 – a round Pyrex dish
• (c) Exhibit L54 – a 200ml vessel
• (d) Exhibit D107 – a printer box
• (e) Exhibit D128 – a gas torch

There was also a fingerprint from the back of Room D in the house. It was not possible to say when the fingerprints had been placed on the particular items.

[6] Amongst the items on which her fingerprints were located there was glassware containing methamphetamine residue, in particular two Pyrex dishes and one chemical flask. The chemical flask unmistakably would have had one purpose only, namely the manufacture of methamphetamine. While Ms Fulop may have used the Pyrex dishes for cooking, the fact that her fingerprints were on Pyrex dishes with methamphetamine in them was inconsistent with her touching them for cooking purposes and consistent with her touching them for manufacturing purposes.
[7] When Ms Fulop gave evidence she admitted her ongoing use of methamphetamine and her awareness that there was a methamphetamine operation being conducted by Mr Hannon. In the course of her evidence she displayed a considerable knowledge of the intricacies of the manufacture of methamphetamine. She acknowledged that she understood that toluene was used in the process. She was aware of the role of acetone being used to “clean the P if it is dirty”. She was aware of the use of iodine and hypophosphorous acid. She gave evidence that the steam distiller could be used to clean the reaction mixture and indeed said that she had seen the distiller being used in the bathroom. She knew that a tall glass was required to capture liquid from the steam distiller. She thought that the pH meter found at the house would have been used to test whether the liquid was sufficiently caustic at stages of the process. She knew that a pH meter was used to test the levels of methamphetamine, although she recalled seeing only the pH sticks. She knew that the white residue on the glassware indicated that the item had been used to manufacture methamphetamine. She also knew that a red bin that was outside the bedroom contained waste liquid from the manufacture of methamphetamine.
[8] At one point in the cross-examination there was the following exchange between Ms Fulop and prosecuting counsel:

17. But isn’t the truth that you were assisting him and participating in the manufacture of methamphetamine at that address?

A I was just like helping him.

Q Helping him?

1. No. I only smoked methamphetamine, I did not help him, that’s horrible that stuff. I’ve smelt it, and I’ve had my fingers stung from things I’ve touched and no.

(Emphasis added).

[9] She also gave evidence that the chemicals used in the manufacture of methamphetamine would cause burns to skin if they came into contact with it, and could burn a person’s throat. A witness who was called by the Police gave evidence that she saw Ms Fulop on one occasion carrying bottles into the house of what she had assumed was water, but that she described as similar to bottles of Fuelite that were found in the house.
[10] Apart from the quoted exchange, Ms Fulop resolutely denied involvement in the manufacturing process. She said that the bottles she had been seen with could not have been bottles of Fuelite because she had not brought Fuelite into the house. She said that she could only recall having brought bottles of water and alcohol into the house. While acknowledging that her fingerprints were found on the various items, she said that sometimes she would move items that were in the way or take them for cleaning and that this was the explanation for her fingerprints being located on them. She drew a picture of her relationship with Mr Hannon being something off and on, with him not always being there and with him being entirely in charge of the manufacturing.

Our assessment

[11] There was a formidable body of evidence that the Police could rely on in proving manufacturing by Ms Fulop beyond reasonable doubt. While the case was circumstantial the Crown could call on:

• (a) Her occupation of the parts of the house used for the manufacture of methamphetamine.
• (b) Her admission that she helped Mr Hannon (albeit retracted immediately afterwards).
• (c) Her fingerprints on the various items, particularly those with methamphetamine residue on them. The jury might well have thought it unlikely that she would touch such specialist items and leave them in the area where methamphetamine was being manufactured unless she was actually involved in the process. The situation would have been different if the items had been found in the sink or in a dishwasher. This evidence was of particular probative value.
• (d) Her knowledge of the details of the manufacturing process.
• (e) Her admission that she possessed a pipe and was a regular methamphetamine user.

[12] The Court will allow an appeal on the basis put forward by the appellant if it is of the opinion that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.[1] A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.[2]
[13] We have no difficulty in concluding that the jury could reasonably have been satisfied to the required standard that the accused was guilty. The pieces of evidence considered together pointed strongly towards Ms Fulop’s involvement in the process of manufacturing methamphetamine. We do not consider the verdict on that count to be unsafe. There was also sufficient evidence that the jury could reasonably have been satisfied to the required standard that Ms Fulop had possession of the substances, material and equipment in the sense of control over them, albeit shared control.

Result

[14] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent.

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[1] Crimes Act 1961, s 385(1)(a)
[2] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].