MENE v R [2015] NZCA 158

MENE v R [2015] NZCA 158 [11 May 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA382/2014[2015] NZCA 158BETWEEN ALEX MOSES MENEAppellantAND THE QUEENRespondentHearing: 21 April 2015Court: White, Keane and Wylie JJCounsel: D R F Gardiner for AppellantS K Barr for RespondentJudgment: 11 May 2015 at 4.00 pmJUDGMENT OF THE COURTAppeal against conviction dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Keane J)[1] In April 2014, at his trial in the High Court at Auckland, Alex Mene was convicted of possessing for supply the class A controlled drug methamphetamine. For that offence Venning J sentenced him to imprisonment for four years, nine months. He imposed concurrent terms for a representative supply charge and a charge of possessing precursor substances, to which Mr Mene had pleaded guilty before trial.[2] Mr Mene appeals his conviction for the possession for supply offence on thesingle ground that the jury's verdict was unreasonable or could not be supported onthe evidence and thus that there has been a miscarriage of justice.1 As at his trial Mr Mene contends that the jury could not, on the evidence, have reasonably inferred that he possessed for supply a crystalline substance weighing 64.9 grams containing methamphetamine, which was found by the police in a plastic container under a mattress in his bedroom.[3] In October 2011, the police executed a search warrant at Mr Mene's address.When the police arrived Mr Mene and two others were in his bedroom. One of the others, Elijah Waterman, was also charged with possessing the methamphetamine, and with possessing a pistol which carried a trace of his DNA, found under the mattress next to the methamphetamine. Before trial Mr Waterman pleaded guilty to that offence and he was discharged on the charge of possessing methamphetamine when the Crown offered no evidence against him. As a result, Mr Mene became the only person charged with possessing the methamphetamine.[4] At trial Mr Mene, as well as denying that offence, contended that on the evidence the only reasonable possibility was that Mr Waterman had solely possessed the methamphetamine, as well as the pistol. On this appeal he contends that, inrejecting that possibility, the jury's verdict was unreasonable.Appeal principles[5] An appeal on the basis that 'the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence'reduces to a single question: whether the verdict is unreasonable.2 As the Supreme Court said in Owen v R:3An 'unsupported' verdict must necessarily be an unreasonable verdict. Anunreasonable verdict has insufficient evidence to support it. A verdict with no evidence to support it is simply at the outer end of the continuum.[6] This question, the Court continued to say, is to be answered in its own terms.It does not assist to consider whether it might be 'unsafe, unsatisfactory or dangerous1 Crimes Act 1961, ss 383 and 385.2 Crimes Act, s 385(1)(a).3 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [12].to convict'. They are the consequences of an unreasonable verdict, not the test itself.4[7] In assessing this issue on an appeal, the Supreme Court emphasised, thisCourt must, when reviewing the trial evidence, respect the jury's function, which isto find the facts; and must be conscious that the jury has within reasonable bounds the ability to weigh the evidence as it sees fit, with the advantage of having been able to assess for itself the honesty and reliability of the witnesses.5[8] At the trial the primary facts were not significantly in issue. The issue was what could be reasonably inferred from such primary facts as there were. In issue on this appeal is whether the jury founded its inferences on proved facts, or speculated in the absence of proved facts, or made inferences inconsistent with the presumption of innocence.Issues for jury[9] The first issue for the jury, as Venning J correctly instructed it, was whether Mr Mene possessed the methamphetamine himself or jointly with Mr Waterman. To find that he possessed it in either of those senses, the Judge instructed them, they had to be sure that Mr Mene knew that the container was under his mattress; that he knew that it contained a prohibited drug; that he had actual or potential control of it, and that he intended to exercise that control.[10] The jury were then instructed, equally correctly, that they had to be sure that Mr Mene possessed the methamphetamine for supply. They were told that the Crown did not rely on the presumption that he did possess it for supply. It could not prove that the substance contained at least five grams of methamphetamine. But, the Judge said, the critical issue remained whether he possessed it at all. If they were satisfied as to that, they were likely to be less troubled by the issue of purpose.[11] When considering its verdict the jury asked the Judge this question:4 At [17].5 At [13].If Mene is looking to purchase any amount of Methamphetamine from the container does that constitute intent to exercise joint control over the container of Methamphetamine?[12] The Judge first responded by saying that the jury's question assumed that Mr Mene was the purchaser, and Mr Waterman the vendor. If that were so, the Judge said, and at the time of the police search the transaction remained incomplete, Mr Waterman would have retained effective control. There was no evidence whether any transaction was then complete. The jury were not to speculate. If they were left with a reasonable doubt Mr Mene was entitled to the benefit of it.[13] The following morning the Judge returned to the jury's question. He said thattheir question also suggested the possibility that Mr Mene and Mr Waterman might each have possessed part of the methamphetamine. But that, he said, was not how the case had been put to them by the Crown and they did not need to consider it.[14] The Judge then identified three possibilities on the Crown case. The first was that Mr Waterman possessed all of the methamphetamine, the second was that Mr Mene possessed all of it, and the third was that they possessed all of it jointly. He concluded by saying this:to find Mr Mene was in possession of the methamphetamine you must be sure that he either had sole possession of all that methamphetamine or that he had joint possession of all of that methamphetamine with Mr Waterman. For Mr Mene to have had joint possession with Mr Waterman in that way you must be satisfied that if Mr Waterman had the methamphetamine Mr Mene knew Mr Waterman had it and intended himself to exercise control over that methamphetamine together with Mr Waterman.Crown case[15] In contending at trial that Mr Mene must have possessed the methamphetamine for supply either by himself, or together with Mr Waterman, the Crown relied firstly on the fact that it was found in his bedroom, under his mattress; and that he and Mr Waterman were together in the bedroom when the police began their search of the house.[16] Secondly, the Crown relied on the fact that he had pleaded guilty to supplying methamphetamine between 1 June–6 October 2011 and that on 5–6 October he andMr Waterman had exchanged texts concerning methamphetamine. On the texts, the Crown accepted, it was possible that on the day Mr Mene might have been supplying Mr Waterman, or Mr Waterman might have been supplying Mr Mene. It did not matter.[17] Thirdly, the Crown relied on the fact that $1,300 cash was found on Mr Waterman on arrest to suggest that he was to purchase methamphetamine to that value from Mr Mene. But, even if Mr Waterman had brought the methamphetamine to the house, the Crown contended that could only have been so that they could decide what to do with it next. They must have shared full actual or potential control.[18] Thus, the Crown case was, when the police began to search Mr Mene'shouse, he and Mr Waterman had every reason to conceal the methamphetamine alongside the pistol, under the mattress. Mr Waterman, the Crown contended, could not have done that without Mr Mene knowing. They emerged from the bedroom almost simultaneously.Defence case[19] Mr Mene did not give evidence at trial but in his statement to the police after his arrest denied that he knew about, let alone possessed, the container of methamphetamine concealed under his mattress. He said that he had seen the pistolat Mr Waterman's house earlier that day, but that was all.[20] At trial, he accepted that he was a drug dealer, as was apparent from his pleas of guilty to the supply offences, and that he and Mr Waterman were business associates who had been involved in the distribution of methamphetamine. But hiscase was that Mr Waterman was his supplier. He was not Mr Waterman's supplier.[21] Secondly, his case was that the text messages which he exchanged with Mr Waterman on 5–6 October were more consistent with Mr Waterman supplying him with methamphetamine than with him supplying Mr Waterman. At most, moreover, they suggested a transaction earlier that day at Mr Waterman's house, notany at his own house.[22] Thirdly, his case was that there was nothing to link him forensically or otherwise with the plastic container of methamphetamine found under the mattress in his bedroom. Furthermore, the methamphetamine was not in a commercial quantity. It was not packaged for sale. Nor was it then able to be divided accurately. There were no scales in the house. The amount found was inconsistent with the Crown case that Mr Waterman was to make a $1300 purchase.[23] Finally, Mr Mene contended, the Crown could not prove how long he and Mr Waterman had been in the bedroom or what they had discussed. Nor could it exclude the possibility that Mr Waterman had kept the pistol and methamphetamine concealed until the search began and concealed both under the mattress without Mr Mene knowing. He was first out of the door and Mr Waterman last.Conclusions[24] To find Mr Mene guilty of possession of the methamphetamine found in his bedroom on 6 October 2011 the jury had to be sure either that he had, or shared with Mr Waterman, conscious and deliberate actual or potential control of it. It had to exclude the possibility that Mr Waterman alone might have possessed it. The directions the jury received were entirely clear.[25] The Crown's case, which the jury must have found convincing, rested on theinvited inferences we have outlined, in the face of the contrary inferences invited bythe defence. On this appeal Mr Mene's counsel, in a detailed submission, has takenus through the evidence from which the Crown derived those inferences in an effort to persuade us that they were unreasonable and speculative.[26] Each strand in the Crown's case, we accept, was open to challenge, as iscommonly so when a case rests on inference. On the Crown's case as a whole,however, we are satisfied that the jury was entitled to conclude that Mr Mene was in sole or joint possession of the methamphetamine when the police arrived.[27] One possibility was that Mr Mene had the methamphetamine before Mr Waterman arrived. In that case he was in possession. The other is that Mr Waterman brought the methamphetamine with him and, if that were so, the jurywere entitled to infer that this must have been so that he and Mr Mene could decide what to do with it. In that event they would have possessed the methamphetamine together.[28] Finally, the jury were entitled to infer that, when the police arrived, Mr Mene and Mr Waterman did the only thing they could do to avoid being found with the pistol and methamphetamine on them. They put both under the mattress. Afterwards, Mr Waterman became fixed with the pistol because it carried his DNA. At trial, the jury were entitled to conclude, Mr Mene was fixed with the methamphetamine because it was in his bedroom and under his mattress.[29] We conclude that the jury's verdict was not unreasonable and that there has been no miscarriage of justice. Mr Mene's appeal is dismissed.Solicitors:Crown Law Office, Wellington