Watt v R [2014] NZCA 459 (18 September 2014)

Last Updated: 3 October 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA181/2014 [2014] NZCA 459
BETWEEN	SHANE MICHAEL WATT Appellant
AND	THE QUEEN Respondent

Hearing:	4 September 2014
Court:	Ellen France P, Asher and Clifford JJ
Counsel:	M W Ryan for Appellant M D Downs for Respondent
Judgment:	18 September 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
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REASONS OF THE COURT

(Given by Ellen France P)

Introduction

[1] The appellant was convicted after trial of a representative count of manufacturing methamphetamine. He was sentenced by the trial Judge, Judge Field, to 300 hours community work and 18 months intensive supervision.^[1] The appellant appeals against conviction on the basis that the verdict is unreasonable in terms of s 385(1)(a) of the Crimes Act 1961.
[2] We set out the background and then address the merits of the appeal.

Background

[3] The events giving rise to the charge began with purchases by the appellant of laboratory equipment (predominantly glassware) on Trade Me from December 2008. There was evidence at trial of ongoing purchases of equipment up to 9 June 2010. There was further evidence that the appellant purchased substances that have use in the manufacture of methamphetamine, namely, toluene and acetone. In particular, there was evidence the appellant purchased three litres of toluene on 1 July 2010 and that, on 15 and 22 July 2010, he bought a total of eight litres of acetone.
[4] The next step in the narrative occurred on 30 July 2010 when a search warrant was executed at the appellant’s rural property. The focus of police interest was on an implement shed. Entry to the shed was protected by two reinforced doors. The first door was described as “heavily reinforced” with “steel” and “numerous” locks. The shed was also protected by a closed-circuit television system. The evidence from the police was that the 10 cameras in the system were directed to the shed or to its immediate environs.
[5] Inside the shed, police found the equipment and glassware we have described above along with toluene and acetone. In addition, the police located an electronic pH meter and two glass baking dishes in a sink. Both dishes contained liquid in which there was methamphetamine. Around the sink area, four swabs were taken. The evidence of Dr Coxon, from Environmental Science and Research (ESR), was that all four swabs revealed the presence of methamphetamine.
[6] Dr Coxon said that two of the four swabs disclosed a level of methamphetamine consistent with either consumption or manufacture of methamphetamine. A third swab, taken from an area above the shed sink, showed a higher level of methamphetamine consistent with manufacture. Dr Coxon could not “100%” exclude the possibility the findings were accounted for by consumption (smoking) of methamphetamine but her opinion was that methamphetamine had been manufactured on the premises.
[7] When the appellant was questioned by police on the execution of the search warrant, he was asked about the glassware. His response was: “It’s mine, no one else is involved.” The appellant also told the police officer that he did not smoke methamphetamine and he lied about when and where he had bought the acetone.
[8] The appellant gave and called evidence at trial. In essence, his defence was that the various items on which the police focused their attention were all purchased for legitimate purposes. For example, the appellant said that the glassware purchased on Trade Me was bought for home brew and other legitimate purposes. Further, his evidence was that the camera system and the reinforced doors reflected a concern about recent burglaries in the area. The appellant’s wife supported his evidence on these matters. Finally, the appellant said that the toluene was used by his mechanic in the octane boosting of fuels for motor vehicles and the mechanic gave evidence in support of that explanation.
[9] The defence also said that the presence of methamphetamine in the shed was explained by the fact the appellant had been a methamphetamine addict and he and a friend smoked methamphetamine in the shed. The appellant gave evidence of his addiction to methamphetamine and that evidence was again supported by that of his wife. The defence case also relied on the absence of other features of methamphetamine manufacturing, for example, the absence of some of the necessary chemicals such as iodine.

The appeal

[10] As we have said, the appeal is brought on the basis that the verdict is unreasonable. In developing this submission, Mr Ryan for the appellant submits first that an explanation was given for each of the various strands of the Crown case. Secondly, the ESR evidence was not conclusive. Given the relative weakness of the strands, the appellant submits that the ESR evidence was not sufficiently strong to bear the weight it is asked to. The appellant refers in this context to the fact the jury asked a question during the trial about the respective levels of methamphetamine in the swab which would indicate manufacture and/or smoking.
[11] Mr Downs for the Crown accepts the evidence from Dr Coxon was a central part of the Crown case. He submits that her evidence was properly a matter for the jury to take into account and the jury was entitled to look at all of the evidence. The submission is that when the evidence is viewed in totality the verdict was not unreasonable.

The applicable principles

[12] In R v Owen the Supreme Court confirmed that 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] The Supreme Court endorsed a number of aspects of this Court’s decision in R v Munro, importantly for the present case, that the appellate court is performing a review function, not one of substituting its own view of the evidence, and that the weight to be given to individual pieces of evidence is essentially a jury function.^[3]
[13] In the context of a case based on circumstantial evidence the principles set out in Thomas v The Queen are still relevant.^[4] There may be evidence in a circumstantial case which, if relied on standing alone, would require the jury to speculate but which, when considered along with other evidence at trial, would give rise to no doubt at all. As William Young P put it for this Court in R v Guo, applying Thomas and the strands of a rope analogy, “each individual component of the relevant circumstances is required to be assessed not just on its own, but also in the context of the case as a whole (including the circumstances relied on by the defence)”.^[5]

Our assessment

[14] There was clearly evidence from which the jury could have been reasonably satisfied that methamphetamine had been manufactured at the shed at least once during the period in the indictment. This was a circumstantial case but, as we now discuss, the pieces of evidence considered together provided a sufficient basis for the guilty verdict. This was not a case where the evidence was unsafe to rely on because it is of a character that can never gain in its value from the context.^[6]
[15] There were a number of indicia of the manufacturing of methamphetamine. We refer to the presence of a specific type of glassware, that is, laboratory glassware. For example, the conical flask found by the police in the shed. In addition, there were the chemicals (toluene and acetone) located in the shed which were capable of being used in the manufacture of methamphetamine. There was also evidence the appellant had purchased both the glassware and the chemicals. The jury could take into account in addition the environs that is, the security cameras and reinforced doors on an implement shed.
[16] Further, methamphetamine was present both in the swabs and in the liquid in the dishes in the sink. Dr Coxon’s evidence also supports the inference of manufacture. The fact that she could not be 100 per cent sure did not mean that her evidence was without value. It was still part of the circumstantial evidence appropriately put into the mix. That conclusion is supported by a consideration of the relevant parts of her evidence. She expressed the view that methamphetamine had been manufactured on the premises and explained that this opinion was based on the swab results. Dr Coxon continued:

And as I’ve said, you have three of those swabs on their own, it could be from smoking or from manufacture, I can’t tell that. And there’s the one swab that’s of a higher level, that is more than I would expect from smoking alone. Can I rule out smoking 100%? That’s just not possible. You cannot rule that out 100%. And then that’s the same with everything. But the level in that particular swab is higher than I would expect from smoking alone, but I can’t 100% rule that out.

[17] In cross-examination Dr Coxon reiterated that she could not completely rule out the possibility this result was due to smoking. Dr Coxon said:

... the level in swab W02 is higher than you would expect from smoking alone, is consistent with manufacture and for me, in my opinion, it is from manufacture or most likely to be from manufacture, because I can’t rule out 100% contamination due to smoking.

[18] However, this was not a case of an expert witness retracting her opinion but, rather, one where the witness appropriately ruled out the ability to scientifically exclude the possibility of consumption.
[19] Finally, the appellant told demonstrable lies about the purchase of the chemicals when first interviewed by the police. Other aspects of his responses to the police were problematic. For example, his initial denial of smoking methamphetamine was in contrast to his evidence at trial that he was an addict. As was the case in Henwood v R,^[7] it was open to the jury to reject his explanation and we can put it to one side.
[20] For these reasons, we are satisfied that the challenge to the verdict must fail.

Result

[21] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Watt DC Auckland CRI-2010-092-11784, 14 March 2014.

^[2] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5] and [17].

^[3] At [13]; R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [86]–[90].

^[4] Thomas v The Queen [1972] NZLR 34 (CA).

^[5] R v Guo [2009] NZCA 612 at [50]; see also a recent example in Pue v R [2014] NZCA 273 at [27].

^[6] See the discussion of Thomas in R v Goodman [2008] NZCA 384 at [12]–[13].

^[7] Henwood v R [2014] NZCA 111.