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Court of Appeal of New Zealand |
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Court of Appeal of New ZealandLast Updated: 5 March 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
9 February 2015 |
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Court: |
Wild, MacKenzie and Lang JJ |
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Counsel: |
Q Duff and GTR Duff for Appellant
S K Barr for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeal against both conviction and sentence is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
[1] Ms Keane was found guilty by a jury in the Auckland District Court on one charge of permitting premises to be used for the purpose of manufacturing methamphetamine.[1] On 26 June 2014, Judge Ronayne sentenced Ms Keane to two years imprisonment.[2] Ms Keane appeals to this Court against both conviction and sentence.
Background
[2] Ms Keane and her husband, Mr Tukuafu, were the tenants of a flat situated in Green Bay, Auckland. In January 2012, they had been living there for approximately two years.
[3] On 23 January 2012, emergency services were called to a blaze at the address. A person matching Mr Tukuafu’s appearance was observed hurriedly leaving the address with another man before emergency services arrived. As he left Mr Tukuafu was overheard to say “It’s the oven”. Mr Tukuafu was subsequently treated for burns to his leg.
[4] When the police examined the flat, they found numerous indicia suggesting the property had been used as a clandestine laboratory for the manufacture of methamphetamine. The police found precursor materials and substances including pseudoephedrine, hydrochloric acid, acetone, iodine and caustic soda. The police also found equipment commonly used in the manufacture of methamphetamine. These included a glass baking dish, a Buchner flask and coffee filters. The police also found a small quantity of methamphetamine, together with methamphetamine pipes.
[5] The jury heard that the most likely cause of the fire was a flammable liquid vapour explosion, originating on the kitchen stove. Fuelite and acetone, both of which were found at the scene, are highly flammable substances. The expert evidence at trial was to the effect that, although the damage caused by the fire meant it was not possible to determine whether the manufacture of methamphetamine had been completed, the items found at the address were consistent with the extraction of pseudoephedrine having taken place. According to the expert evidence, methamphetamine is most commonly manufactured from pseudoephedrine in New Zealand.
[6] Mr Tukuafu was charged with being in possession of material, equipment and precursor substances capable of being used in the manufacture of methamphetamine. The jury found him guilty on those charges.[3] Initially he was also charged with manufacturing methamphetamine, but the Crown consented to his discharge on that count prior to trial because there was insufficient evidence to confirm the manufacture of methamphetamine had been completed. A charge of attempting to manufacture methamphetamine was substituted in its place, but the jury was unable to reach a verdict on that charge. The Crown offered no subsequent evidence on the new charge, and Mr Tukuafu was discharged under s 347 of the Crimes Act 1961.
The appeal against conviction
[7] The appeal against conviction rests on an argument that the trial Judge effectively amended the charge during his summing-up to the jury by directing they could find Ms Keane guilty if they were satisfied beyond reasonable doubt the premises had been used for the manufacture or attempted manufacture of methamphetamine.[4] Counsel for Ms Keane, Mr Duff, submits this direction ignored the fact the indictment did not allege Ms Keane had permitted the premises to be used for the attempted manufacture of methamphetamine. Rather, it alleged she had permitted the premises to be used for the manufacture of methamphetamine. He contends this error meant the jury were permitted to find Ms Keane guilty on a factual basis other than that alleged in the indictment. He asks this Court to set the conviction aside as a result.
The elements of the charge, etc
[8] Section 12(1) of the Misuse of Drugs Act 1975 (the Act) provides:
- Use of premises or vehicle
(1) Every person commits an offence against this Act who knowingly permits any premises or any vessel, aircraft, hovercraft, motor vehicle, or other mode of conveyance to be used for the purpose of the commission of an offence against this Act.
...
[9] Much of the argument before us revolved around the issue of whether it was necessary for the Crown to prove that the premises in question had actually been used for the purpose of the commission of an offence against the Act. Both counsel referred us to the opinion expressed by the learned authors of Adams on Criminal Law in relation to this issue.[5] In the following passage they suggest the Crown must establish there has been some use of the premises in question in order to prove a charge under s 12:[6]
Does the planned offence have to occur, or is it sufficient that the premises were used for the purpose of its commission? Attempts to commit offences against this Act are offences against the Crimes Act 1961. If all that occurred on the premises was an attempt, what was “committed” was not an offence against this Act, yet it seems clear that what was permitted was the use of the premises for the “purpose” of the commission of an offence against this Act. The most sensible interpretation is that the defendant is liable if he or she knowingly permitted premises to be used for the “purpose” of the commission of an offence against this Act. However, this raises problems in defining the actus reus of the present offence. If the offence against this Act, for which the defendant knowingly permits the premises to be used, does not itself have to be committed, is it necessary that it even be attempted, and if not, what conduct is necessary to constitute the “use” of the premises? It is suggested that all that is required is some “use” of the premises, and that this need not go so far as an attempt to commit an offence against this Act, since it is the user's purpose that is relevant.
[10] We consider the Crown is required to prove three elements in order to establish a charge under s 12. The first is that the accused had control, or a share of control, over the premises in question.[7] The second is the act or omission constituting the offence, and the third is the knowledge the defendant must have in order to commit the offence.
[11] It is arguable the Crown may prove the second element in one of two ways, depending on whether it relies upon an act or omission on the part of the defendant. The former would require the Crown to prove that the defendant agreed to make the premises in question available for use by another party in the future. In order to prove the charge using this approach, the Crown would need to establish that the defendant knew the other party intended to use the premises for the purpose of committing an offence against the Act. Actual knowledge would be required, although this may be inferred as a matter of fact from evidence of wilful blindness to suspicious circumstances.[8]
[12] Under this approach it would not be necessary for the Crown to prove that the other party subsequently put the premises to their intended use. The offence would be complete as soon as the defendant agreed to make the premises available knowing the purpose for which the other party intended to use it. If this route is available it would obviously run counter to the approach suggested in Adams.[9]
[13] It is not necessary to finally decide this issue in the present case because the Crown did not adopt that approach. Rather, it contended that others had actually used Ms Keane’s premises for the purpose of manufacturing methamphetamine. It alleged Ms Keane knew of that fact, and failed to take reasonable steps to prevent the offending from occurring. In doing so, she permitted her premises to be used for the purpose of manufacturing methamphetamine.[10]
[14] We accept the Crown’s submission that under this approach it is not necessary for the Crown to prove the manufacturing process has reached the stage where methamphetamine has actually been produced. It will be sufficient for it to establish that the premises were used in some way for that purpose. We therefore agree the approach suggested in Adams was appropriate given the circumstances of the present case.
The Judge’s summing up
[15] In accordance with best practice, the Judge provided the jury with a question trail in relation to the charge that Ms Keane faced. This was in the following terms:
Count 7 Ms Tukuafu-Sheehan
Permitting Premises
If yes go to question 2.
If no find Ms Tukuafu-Sheehan “not guilty” of permitting premises.
...
If yes go to question 3.
If no find Ms Tukuafu-Sheehan “not guilty” of permitting premises.
...
If yes find Ms Tukuafu-Sheehan “guilty” of permitting premises.
If no find Ms Tukuafu-Sheehan “not guilty” of permitting premises.
[16] The Judge took the jury through the question trail in the course of his summing up. In dealing with the charge that is the subject of the present appeal, the Judge said:
[57] Now moving to count 7, ladies and gentlemen, again the charge faced only by Ms Tukuafu-Sheehan, permitting premises. The questions, or the first question is this, has the Crown proved beyond reasonable doubt that on or about the 23rd of January 2012, the premises at 62A Godley Road, Green Bay were used for the manufacture or attempted manufacture of methamphetamine. Now I say immediately that the defence position here is that the real focus is on the issue of knowledge but if your answer to this question is yes, you go to question 2. If your answer is “No”, you would find Ms Tukuafu-Sheehan not guilty of permitting premises.
[58] I want to move next though to the second question because the Crown and defence cases really focus on this aspect. The second question is this, has the Crown proved beyond reasonable doubt that Ms Tukuafu-Sheehan knew that either of those offences; manufacture or attempted manufacture of methamphetamine was being carried out or committed at 62A Godley Road, Green Bay on or about the 23rd of January 2012. The same situation, if “Yes”, go to question 3. If “No”, you would find her not guilty.
...
[61] If you have answered “Yes” to question 3, I am sorry, to question 2, you move to question 3; has the Crown proved beyond reasonable doubt that Ms Tukuafu-Sheehan permitted such offences in that she had control of the premises because they were let to her and she chose not to take reasonable steps that were available to her to stop the offence or offences such as evicting the offender or simply calling the police. If your answer to that question is “Yes”, you will find Ms Tukuafu-Sheehan guilty of permitting the premises. If your answer to that question is “No”, you will find her not guilty of that charge and, again, the defence has invited you to focus on the issue of knowledge in relation to that overall.
Decision
[17] The analysis we have undertaken above means it was irrelevant for present purposes whether the person or persons who were using Ms Keane’s premises on 23 January 2012 had taken the manufacturing process to the point where methamphetamine was actually produced. It did not matter whether they were attempting to produce methamphetamine, or had completed the process. It was therefore not necessary for the charge to be amended to refer to the attempted manufacture of methamphetamine. This effectively deals with the argument upon which Mr Duff relied in relation to the appeal against conviction.
[18] We are also satisfied that the questions posed in the question trail required the jury to determine whether the Crown had proved the essential elements of the charge. The jury’s affirmative answer to Question 2 means the Crown had proved that Ms Keane knew others were using her premises for the manufacture or attempted manufacture of methamphetamine. Ms Keane therefore knew that her premises were being used for a purpose that constituted an offence against the Act. The jury’s conclusion in respect of Question 3 means they were also satisfied Ms Keane had control of the premises, and she deliberately refrained from taking reasonable steps to stop the offending that she knew was taking place.
[19] The appeal against conviction must therefore be dismissed.
The appeal against sentence
[20] The appeal against sentence is based on a submission that making premises available for an attempted manufacture of methamphetamine should be regarded as being less culpable than making them available for the actual manufacture of methamphetamine. However, our earlier conclusions mean it is irrelevant whether the manufacture of methamphetamine was completed. Ms Keane’s culpability lies in the fact that she was prepared to allow others to use her premises for that purpose.
[21] Based on the authorities referred to us by the Crown, we are satisfied in any event that the sentence the Judge imposed was well within the range of those imposed in other like cases.[11] The appeal against sentence fails as a result.
Result
[22] The appeal is dismissed.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] Misuse of Drugs Act 1975, s 12. Ms Keane was tried under the surname Tukuafu-Sheehan.
[2] R v Tukuafu-Sheehan DC Auckland CRI-2012-090-4685, 26 June 2014.
[3] R v Tukuafu DC Auckland CRI-2012-090-4685, 23 October 2014 at [1].
[4] In his written submissions Mr Duff abandoned his remaining alternative grounds of appeal.
[5] Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers).
[6] At [MD 12.08].
[7] R v Sweeney [1982] NZCA 116; [1982] 2 NZLR 229 (CA) at 230.
[8] At 230, citing R v Thomas (1976) 63 Cr App R 65 (CA) at 69
[9] Adams on Criminal Law, above n 5.
[10] R v Sweeney, above n 7, at 230.
[11] R v Bate [2014] NZHC 237; R v Gunbie [2014] NZHC 2804.
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