Marlow v R [2015] NZCA 546 (17 November 2015)

Last Updated: 26 November 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA335/2015 [2015] NZCA 546
BETWEEN	SAMUEL GRANICH MARLOW Appellant
AND	THE QUEEN Respondent

Hearing:	14 October 2015
Court:	Miller, Simon France and Asher JJ
Counsel:	I M Brookie for Appellant K S Grau for Respondent
Judgment:	17 November 2015 at 10.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] The appellant Samuel Marlow was convicted following a jury trial in the High Court at Auckland on one charge of attempting to manufacture methamphetamine and three charges of possession of items (precursors, equipment and material) used in the manufacture of methamphetamine.
[2] The charges against Mr Marlow followed the termination of a major drug and corruption investigation called Operation Pax. At 6 am on 17 May 2013, the police executed a search warrant on a property occupied by a Richard Rei in Whenuapai. At the pedestrian gate to the house they located Mr Rei. They then went to the back of the garage that was adjacent to the house, where there was a wooden shed or outhouse. One constable, Constable Chadwicke Cox, entered the shed. There was a light on and there was a curtain across the doorway.
[3] On entering the shed Constable Cox found Mr Marlow standing looking surprised. He was fully clothed. Constable Cox directed him to get down on the ground, which he did. The Constable then went outside the shed and got Mr Marlow to crawl out. The police found that inside the shed there was an operational methamphetamine manufacturing laboratory. The methamphetamine was in the latter stages of manufacture.
[4] Mr Marlow made no statement to the police and did not give evidence. The police case was circumstantial. There was an initial attempt to have Mr Marlow discharged under s 347 of the Crimes Act 1961. That application was dismissed by Venning J on 8 May 2014.^[1] At the trial the jury heard that Mr Rei had pleaded guilty as the “principal cook” for the attempted manufacture.
[5] The sole ground of the appeal is that the verdict was unreasonable and could not be supported having regard to the evidence.
[6] Before us Mr Brookie for Mr Marlow accepted that the presence of the appellant at the scene was suspicious. However, it was submitted that the Crown evidence failed to show prior knowledge or active assistance or encouragement. Mr Marlow’s presence might be indicative of him assisting in the manufacture of methamphetamine, but did not prove the case beyond reasonable doubt. There was a reasonable possibility that Mr Marlow was in the wrong place at the wrong time. Mr Brookie relied on three cases, R v Wheatley, R v Salter, and Watt v R where there were s 347 discharges on the basis that the mere presence of the defendant was insufficient to establish guilt.^[2]

Decision

[7] 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.^[3]
[8] The circumstantial case that was before the jury to prove Mr Marlow’s guilt turned on the following factors:

• (a) His presence in a small shed given over to the manufacture of methamphetamine.
• (b) The shed had no apparent function other than the manufacture of methamphetamine.
• (c) The laboratory was being used and there was a batch of methamphetamine in the latter stages of preparation.
• (d) It was 6 am in the morning and Mr Marlow was in the shed fully clothed.
• (e) The shed was not attached to or close to the house or living quarters, or close to a toilet or kitchen or other usual living facility.
• (f) Mr Marlow’s clothing tested positive for pseudoephedrine and chloropheniramine at levels higher than trace levels. It was also shown that these chemicals could penetrate clothing through direct contact or indirectly through the atmosphere.
• (g) There were text exchanges between Mr Marlow and Mr Rei that indicated that Mr Marlow had been present at an earlier occasion when it was proven Mr Rei was manufacturing methamphetamine (although the texts did not indicate any involvement).

[9] The simple question in this appeal is whether these factors cumulatively could have led the jury to conclude that it was beyond reasonable doubt that Mr Marlow was guilty of the charges. We are satisfied that they could.
[10] Mr Brookie went through various alternative explanations for each of these factors. Mr Marlow may have been at the address because of his interest in cars, or because he did some work as an electrician. While Mr Rei’s fingerprints were found on a baking dish in the shed, there were no fingerprints found for Mr Marlow. The presence of pseudoephedrine on Mr Marlow’s clothing could be explained by the presence of fumes within the shed or by him coming into contact with the floor when he was asked to lie down. The phone data was equivocal. His presence could have been innocent.
[11] However, it is very difficult to see any rational explanation for Mr Marlow’s presence fully clothed at 6 am in the morning in a small shed away from the house, entirely devoted to the manufacture of methamphetamine, unless he was assisting Mr Rei in that manufacturing process. None of the explanations offered credibly explains that.
[12] Of course it was open to Mr Marlow to explain why else he would have been there. But the jury were not required to speculate on possibilities for which there was no credible support in the evidence before them. We can see why in the circumstances a jury could be entirely certain that the only inference to be drawn from the various proven facts was that Mr Marlow was assisting Mr Rei in the manufacture of methamphetamine. The Crown did not have to prove how that help was being given, whether it was by encouraging Mr Rei, helping him in the manufacture or warning him of the arrival of the police.
[13] The absence of Mr Marlow’s fingerprints, while properly emphasised at the trial, does not take the defence case very far. It was not a necessary part of the Crown case that Mr Marlow was actively working the equipment. In any event we accept the Crown submission that Mr Marlow might not have left fingerprints even if he had touched items in the laboratory. Ultimately, very few fingerprints were found.
[14] We do not propose traversing further the various hypothetical innocent explanations for Mr Marlow’s presence put forward by Mr Brookie. There could of course be innocent explanations for his presence in the house as an overnight guest, if that is where he had been found. What cannot be easily explained is his presence fully clothed in the shed at the back of the property in the early morning, at a time when methamphetamine manufacturing was in progress.
[15] We do not think the cases of R v Wheatley, R v Salter and Watt v R assist. These cases involved different charges and facts and, in our assessment, weaker circumstantial cases. Cases turning on circumstantial evidence are not inherently weaker than cases turning on direct evidence.
[16] This was a strong circumstantial case and no evidence was called on behalf of Mr Marlow to weaken it. Despite Mr Brookie’s careful submissions to the contrary, we are left with no doubt that the jury could reasonably have been satisfied beyond reasonable doubt that Mr Marlow was guilty.

Result

[17] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent.

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^[1] R v Marlow [2014] NZHC 957.

^[2] R v Wheatley HC Hamilton CRI-2006-019-8509, 6 September 2007; R v Salter HC Christchurch CRI-2006-009-8678, 3 November 2006; and Watt v R [2014] NZCA 459.

^[3] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37.