R v McNeill DC Christchurch CRI-2010-009-6262 [2011] NZDC 1450 (7 September 2011)

Last Updated: 1 January 2020

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2010-009-006262

THE QUEEN

v

JOANNA MARY MCNEILL MICHAEL DENNIS ROSS KANE NATHAN MCNEILL DENIS GILLISON

COLE WAYNE SAMUAL MILLAR

Defendants

Hearing: 5 September 2011 (Heard at Timaru)

Appearances: C J Boshier for Crown J H M Eaton for J McNeill and Millar J Rapley for Ross S Shamy for K McNeill

Judgment: 7 September 2011

JUDGMENT OF JUDGE D J L SAUNDERS

Background

[1] Kane McNeill and his mother Joanna McNeill have been charged with offences under the Misuse of Drugs Act arising out of a search of business premises, named Pet and Garden Supplies, as well as a private residence occupied by them in Macmillan Avenue, Christchurch.

[2] Associated with the charges are three other individuals.

R V JOANNA MARY MCNEILL DC CHCH CRI-2010-009-006262 [7 September 2011]

[3] Cole Millar, is the partner of Joanna McNeill and occupies the residence at Macmillan Avenue. His charges arise solely out of the search of those premises by the Police under a search warrant. He does not face any charges in respect of the business premises.

[4] Mr Michael Ross is an employee of Pet and Garden Supplies and he faces a number of charges arising out of various transactions at the business premises. As a result of a search warrant at his home, charges have been laid in respect of items seized under the search warrant.

[5] Finally, Denis Gillison faces a charge of supplying equipment capable of being used to commit an offence under the Misuse of Drugs Act. This sole charge relates to the supply of a bottle of Ozi Magic Grow Juice Monsta Bud. This is a joint charge with Joanna McNeill who has been held vicariously liable for the actions of Mr Gillison.

[6] The charges arise after an undercover operation had taken place whereby a number of police officers acting in an undercover role made purchases of various items from Pet and Garden Supplies.

[7] It was as a result of conversations which took place at the time of the transactions that search warrants to search private homes were applied for.

Issues

[8] A number of issues have been raised by counsel at the pre-trial application held at Timaru on 5 September 2011.

[9] Mr Kane McNeill is represented by Mr Shamy and faces only one count in the indictment. There are some summary charges arising from the execution of the search warrant and the validity of the warrant is very much in issue and has been the subject of submissions by Mr Eaton on behalf of Ms Joanna McNeill.

[10] In short, the accused is said to in his capacity as an 18 year old store assistant sold a 200 watt CFL fluorescent lamp to an undercover police officer. The sale is not

disputed and it appears that had Michael Ross been available in the shop that this transaction would have been handled by him.

[11] Having regard to the circumstances outlined the Crown Prosecutor agreed that this charge would not be pursued if the accused Kane McNeill was prepared to make a donation of $300.00 to the SPCA charity.

[12] It was accepted that his low level of culpability should not result in a conviction for this matter and the Crown offered no objection to both the accused and his mother Ms McNeill being discharged under s 347 of the Crimes Act.

[13] Order made accordingly in respect of Count 12.

Ms McNeill

[14] Mr Eaton accepted that the first three counts in the indictment can be made out on the evidence disclosed and no application is made for discharge in respect of those counts. Indeed, pleas of guilty have been notified in relation to these counts.

[15] The objection to the joint charges with Mr Ross is based on two essential grounds. Firstly, that section 17 of the Misuse of Drugs Act is an inappropriate means by which to hold her responsible for the alleged criminal act of the co- accused Mr Ross and Mr Gillison.

[16] In relation to Mr Gillison only one transaction took place and there is no evidence that Ms McNeill actively aided or abetted the transaction under section 66. The Crown falls back on section 17 to hold Ms McNeill vicariously liable for the act of what is said to be an employee of Pet and Garden Supplies.

[17] No case law has been located in relation to section 17 and the Crown argues that it is appropriate to hold the accused McNeill responsible for all transactions where an employee has supplied equipment or indeed seedlings to an undercover officer.

[18] The Crown submits that generally the evidence establishes that the accused McNeill was the “boss” and was prepared to engage in conversations and transactions whereby equipment and articles that were capable of being used to commit an offence under the Misuse of Drugs Act passed to customers.

[19] Mr Eaton submitted that unless it could be proved that the accused was present and encouraged the transactions she could not be liable under section 66 of the Crimes Act.

[20] In relation to section 17 Mr Eaton submitted there was a deficiency in proof that the accused was in fact the employer. The evidence was that she was a Director of Sight and Sound, a limited liability company but no evidence that would prove the employer/employee relationship of the accused with the co-accused.

[21] In summary, counsel submitted that the resort to section 17 was not an appropriate way of dealing with liability in the circumstances of this case. Mr Eaton pointed to a deficiency in evidence around the supply of “High Times” and the DVD and the failure to produce the items in question.

[22] In respect of the search warrant for the private dwelling, Mr Eaton pointed to the error made in seeking a Proceeds of Crime warrant under section 198 of the Summary Proceedings Act. It was submitted that following the established principles set out in R v Williams that the Crown had not established the basis upon which a search of a private dwelling could have been sanctioned.

[23] Even if the illegality was accepted, the resulting discovery of such a small quantity of cannabis was such that it would not on a question of proportionality justified the breach.

[24] Ms Boshier for the Crown accepted that upon examination of the search warrant affidavit there were some legal deficiencies. It was suggested that, given the real possibility of business records being held at the house and the appropriateness of a search of the business premises in light of the acknowledged transactions, that the

Police were entitled to obtain a warrant to search for the records at Macmillan Avenue.

[25] There was not a strong argument made for the admission of the evidence gathered at Macmillan Avenue and I have no difficulty in holding that the search warrant application did not satisfy the test for reasonable grounds to believe that evidence of cultivation of cannabis would be located there.

[26] Upon that basis I turn to look at the test to be applied to illegally obtained evidence.

[27] There is no justification for excusing the breach when the balancing test is applied and I therefore find that the evidence should be excluded in relation to the search of the property.

[28] The result of that finding means that the summary charges against Kane McNeill must be dismissed. Likewise, the indictable charges contained in Counts 14 and 15 involving Cole Millar and Joanna McNeill must fail. I direct that both accused be discharged on these jointly laid charges.

[29] I return to deal with the joint charges involving Mr Ross and Mr Gillison. It is convenient to deal with Mr Gillison’s charge first (Count 13).

[30] As accepted by the Crown there is no supporting evidence that can be pointed to in respect of the section 66 test. It therefore must be determined upon the basis of an application of section 17.

[31] Even if I accept that there may be the basis of an inference of employer/employee relationship it does not appeal to me that the Crown can safely sustain the argument that Ms McNeill should be culpable for the actions of Mr Gillison in selling a bottle of Ozi Magic Grow Juice. The item is legally able to be sold and can be applied to any number of legitimate plants. Ms McNeill was not part to the conversation and could not be expected to carry a responsibility for every transaction made by her salespersons.

[32] As indicated during the hearing I believe the purpose of section 17 was to attach a liability for those persons, such as a pharmacist who has the overall permission to dispense controlled drugs under the Misuse of Drugs Act. I accept the legislation is not so specific as to limit the section to that scenario.

[33] What weighs with me is the fact that the item concerned is legally saleable, unlike a controlled drug, and in the absence of sufficient evidence to show that Ms McNeill was aware of the conversations Mr Gillison had, I do not see it appropriate to hold her liable under section 17. My view is that Ms McNeill should not be at risk of conviction on this count. I would propose to discharge her on Count 13.

[34] I turn now to the three counts, 9, 10. 11 which involve the allegation that she was a party to the sale of cannabis plants to “Ronnie Nixon”, “Russell Keal” and “Jamie”. These transactions occurred with direct involvement by Mr Ross with the undercover officers. There is insufficient evidence to show that this was actively and knowingly encouraged or assisted by Ms McNeill under section 66.

[35] As Mr Eaton submitted, the plants were ones the accused supplied from his own source and were not sold through the store as such. It was submitted that he obtained the plants from his vehicle and the transactions occurred in the car park. In these circumstances I am not persuaded that Ms McNeill could be liable under section 66.

[36] Turning to section 17 I find that this behaviour was outside any employment relationship that could be established between Mr Ross and Ms McNeill. I do not accept that Ms McNeill should be held vicariously liable for transactions outside of the shop and from such she gained no material benefit.

[37] Again I would find on the evidence an insufficient basis upon which to hold her liable under section 17 for these three counts. Accordingly I propose to discharge her in relation to Counts 9, 10 and 11.

[38] I turn to Count 4 which relates to the seven High Times magazines said to be supplied on 27th January 2009. These copies were not produced in evidence and as I

understand the evidence in relation to those documents is that they are produced by a group whose philosophy is supportive of decriminalising the possession of cannabis.

[39] I am not satisfied on the evidence that applying section 66 of the Crimes Act that Ms McNeill knew by reference to these publications that the material would be used in the commission of an offence. For all I know the articles and material contained in the seven magazines were simply the views of those who supported legal reform of our drug law.

[40] I am not persuaded that the basis of this charge is sound and would rule against this charge being left to a jury.

[41] Count 8 is slightly different in the sense it is a DVD which again was not produced but has been viewed by the Police and a summary of what it discloses has been given in evidence.

[42] Again it must under a section 66 test be shown that she knew the purpose of supplying it was for use by the persons receiving it that it would be used to commit the offence of cultivating cannabis, and that by her actions she encouraged or aided the provision of the DVDs to the undercover officer.

[43] I have been referred to conversations which indicate Ms McNeill knew of the existence of the DVD and that it was not immediately available. A helpful comment was allegedly made which indicated that Mr Ross could burn a copy of it from the computer.

[44] This is material from which a jury might draw the inference that the accused was aiding the co-accused to commit the offence alleged.

[45] While I would regard the culpability at a very low level, the test I am obliged to apply under section 347 is to determine if there is any evidence which, if accepted, could lead to a conclusion that the accused was intending to aid the supply of a DVD. If a jury accepts this DVD did clearly set out how to cultivate cannabis it could well be said to be used by the recipient to commit an offence.

[46] I have not addressed section 17 on this count as it appears that there is some evidence of active steps relied upon by the Crown. At this point and in the absence of further argument about whether the officer can describe the content of the DVD as opposed to production of it for the jury consideration, I make no final ruling on this count.

[47] Counts 5, 6 and 7 relate to specific items supplied by Mr Ross in the course of his duties in the store. I would need to be pointed to actual evidence of intentional aiding or abetting under section 66 to be satisfied that the Crown could sustain these charges against Ms McNeill if this is the basis of them being left to a jury.

[48] The likely position is that the Crown relies upon section 17 to found liability.

[49] I have already made my views known about the appropriateness of this section for the actions of a person who may be said to be an employee of Ms McNeill. I accept that the defence rely on lack of proof in respect of the employer/employee relationship, however, that may well be overcome by the reference to the accused being termed “the boss”.

[50] Where I see real concern about leaving these charges to a jury is the fact that all three items are legally able to be sold in the ordinary course of business. Without Ms McNeill being on hand to hear each customer inquiry it is difficult to see how she could have effectively monitored the discussions which took place on the shop floor.

[51] I accept the Crown take a wider view of the matter and argue that generally Ms McNeill was supportive of selling equipment which could well be used for illegal purposes under the Misuse of Drugs Act.

[52] In the event this was a Judge alone trial I would be reluctant to convict on such evidence, however, given the fact this is in the jury arena I must resist the temptation to deal with the matter where there is evidence which, if accepted, could result in an inference being drawn that the accused McNeill was the employer and

was aware of the type of transactions Mr Ross was carrying out but failed to exercise some appropriate supervision over a staff member.

Michael Dennis Ross

[53] Mr Rapley on behalf of his client submitted that the counts in respect of his client arising from the search warrant at 70 Pembroke Street should not be left to a jury. In summary, Mr Rapley criticised the sufficiency of evidence to justify the judicial officer granting the warrant to search.

[54] I have been taken through the application and in particular the affidavit of Detective Michael Handley. It is suggested that there was no basis in respect of the reference to the power account details to allow reasonable grounds to be satisfied that this was related to the cultivation of cannabis. Mr Rapley submitted that there could well have been a number of explanations for the level of power consumption. There was no evidence put forward to show the basis upon which the accused had purchased items from Pet and Garden Supplies to grow cannabis at Pembroke Street.

[55] What I find was established on the affidavit is the accused Ross did freely give advice about the different options available to grow cannabis. Reference was made to the Appendix in which these conversations occurred.

[56] I am satisfied, despite counsel’s criticism of the appendix summary of the conversations that the accused Ross was identified as a person who could supply plants, or clones from which the purchaser could undertake cultivation.

[57] A brief from Jamie supplied to me shows that the accused did purchase three cannabis plant seedlings and the DVD showing the cultivation process.

[58] The information supplied in the application clearly linked the accused Ross to the Pembroke Street address. There is no criticism that the application was based on stale information.

[59] Some issue was made about the application not spelling out the actual nature of the eight criminal convictions for drug related offending. I do not find that lack of

specific detail around the drug dealing convictions is fatal to the application. It was certainly open to the judicial officer to ask questions about them in the event he was not satisfied about the material before him or her.

[60] In looking at the contents of the application I am satisfied that it meets the test set out in R v Williams and associated decisions dealing with the sufficiency of evidence.

[61] Accordingly, in relation to the search of Pembroke Street I uphold the validity of the warrant and find that reasonable grounds were established in the application to justify the search of the premises.

[62] I also find that in respect to the items sold at the shop that the accused had a basis from which he was aware of the intended use of the equipment sold.

[63] To that end I find there is a basis for these charges to survive a s 345/347 application.

D J L Saunders District Court Judge