GOLDSTONE V MANUKAU DISTRICT COURT HC AK CIV-2005-404-6262

GOLDSTONE V MANUKAU DISTRICT COURT HC AK CIV-2005-404-6262 5 July 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-404-6262UNDER the Judicature Amendment Act 1972 IN THE MATTER OF an Application for Judicial Review BETWEEN CAROL JOANNE GOLDSTONE Applicant AND THE DISTRICT COURT AT MANUKAU First Respondent AND THE ATTORNEY-GENERAL Second Respondent Hearing: 21 June 2006 Appearances: C B Wilkinson-Smith for the Applicant C C Inglis for the Second Respondent Judgment: 5 July 2006JUDGMENT OF FRATER JThis judgment was delivered by Justice Frater on 5 July 2006 at 12.00 noon, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date:Solicitors: C B Wilkinson-Smith P O Box 276167 Manukau for the Applicant Crown Law Office P O Box 2858 Wellington for the Second RespondentIntroduction[1] This is an application for judicial review. [2] The applicant faces one charge of possessing a precursor substance, pseudoephedrine, intending that it be used in the production or manufacture of a controlled drug. Prior to her trial in the District Court at Manukau she applied for a discharge under s 347 of the Crimes Act 1961 on the grounds that there was insufficient evidence to go to the jury. The application was dismissed. She now seeks a declaration that Judge Harvey's decision of 6 October 2005 to that effect was invalid, and an order setting it aside. [3] Although the period of the alleged offending is specified in the Indictment to be between 12 May 2003 and 12 April 2004, I note that the Information shows the end date as 12 April 2005, which is the date on which a search warrant under the Misuse of Drugs Act 1975 was executed at the applicant's home. No point seems to be have been made of this discrepancy, which I assume is a typographical error. Certainly there is no indication that the applicant is prejudiced by it.Background[4] The background facts are not in dispute; the inferences to be drawn from them are. [5] A schedule prepared by the officer in charge shows that between 12 May 2003 and 22 December 2004 the applicant made 36 separate visits to 24 pharmacies within the wider Auckland region, extending from Pukekohe in the south to Silverdale in the north, during which she purchased 41 packets of pseudoephedrine based products such as "Codral Day and Night" tablets, "Sinutab" allergy tablets and "Telfast" decongestant tablets. [6] There was no consistent pattern to the visits. Between May and November 2003 she made purchases at least once a month; in 2004 single purchases were madein both February and December, with the rest of the activity taking place in the four months May to August inclusive. [7] In September 2003, there were purchases on four separate days at pharmacies in Manurewa, Highland Park and Milford. In October, buying took place on three days: on 16 October at pharmacies in Milford and Northcote; on 23 October at Highland Park and Manukau, and on 24 October, in Kingsland. [8] On some days in 2004 she made multiple purchases on the same day. For example, in May there were purchases on 15 May from pharmacies as geographically distant as Pukekohe, Mt Smart and Otahuhu; on 27 May in Papatoetoe and Papakura. In August, two purchases from separate pharmacies in Otahuhu were noted on 3 August, and three on 31 August from two in Northcote and one in Silverdale. [9] When making purchases the applicant always gave her correct name and produced either her driver's licence or passport for identification. Most of the time she also gave an address in Mt Wellington which she had at least a past association with, although whether she lived at the address at the time the purchases were made was in issue, as was the connection that she had with the other two addresses she gave, and whether she had deliberately used handwriting that was hard to read. [10] No pseudoephedrine medication or packaging for that medication was found at her address when it was searched, five months after the last purchase. [11] When asked by the Police why she bought the tablets, she said that she was a sickness beneficiary and took pseudoephedrine tablets as an alternative stimulant. [12] Based on an average yield of 60 milligrams of pseudoephedrine per tablet and 20 tablets per packet, the purchases could have produced a total of 24.6 grams of pure methamphetamine, having a street value of $24,000. The Police also accepted that over the 18 month period the applicant would have acquired approximately 820 tablets. Mr Wilkinson-Smith calculated that this worked out at approximately two tablets per day.[13] Expert evidence was given at the preliminary hearing about the manufacture of methamphetamine and the use to which pseudoephedrine is put in that process. Evidence was also given about the part that shoppers play in the chain of events leading to the manufacture of methamphetamine and the practices they adopt to obtain large quantities of the primary precursor, without detection.District Court decision[14] After outlining the evidence and the sometimes contradictory inferences which the parties sought to draw from it and referring to the legal basis for granting a discharge under s 347 as discussed in R v Flyger [2001] 2 NZLR 721 and Parris v Attorney-General [2004] 1 NZLR 519, the learned Judge concluded:[19] When a case deals with circumstantial evidence that relies upon the establishment of foundation for inferences, clearly if there is insufficient evidence for the foundation to be laid, then the matter must obviously be one for consideration by a Judge at this stage but if there is evidence that is sufficient for inferences to be drawn and were the matter to be considered as the weight to which those inferences are made, the weight that should be attached to those inferences, the one against the other or where there is a matter where those inferences are made be balanced (sic), it is not a matter for a Judge at this stage of the proceeding. [20] It is clearly a matter for the Jury and I agree with Ms Barrett's submissions that the matter should go before the Jury and that this Application should be dismissed and I so rule.Discussion[15] Mr Wilkinson-Smith started his submissions in support of the judicial review proceeding by asserting that the unchallenged evidence in this case gives rise to two inferences, one supporting guilt and the other innocence, which are so finely balanced that it is impossible to determine between them. In these circumstances, he said, a properly directed jury would be told to accept the innocent inference and therefore acquit: R v Puttick (1985) 1 CRNZ 644. The Judge erred in failing to apply this principle. [16] The premise underlying this submission is that the inferences which can be drawn from the evidence are of equal weight. And therein lies its fallacy. Mr Wilkinson-Smith assumed that simply because the applicant has given anexplanation for making the purchases the jury will accept it as credible and afford it the same or similar weight to the guilty inferences which the Crown seek to draw from the expert evidence about the practices adopted by shoppers, and what Ms Goldstone actually did. [17] I put to Mr Wilkinson-Smith that it was open to the jury to reject the applicant's explanation on the basis of their own experience and applying common sense, but he said they could not do so. He said that if the Crown wished to challenge what she said, they should have adduced expert evidence as to the probability of her claimed addiction and that, in the absence of such evidence, her explanation could not be ruled out as a real possibility. [18] I do not accept that. The jury will be directed that if they accept her explanation, or if, in the circumstances it is sufficient to raise a reasonable doubt in their minds, no doubt they will find the applicant not guilty of the charge she faces. If, however, they reject it, they would then need to decide whether, on the basis of the rest of the evidence, the Crown has satisfied the onus upon it. What the jury make of the applicant's explanation is a matter for them. As the Court of Appeal made abundantly clear in Puttick, the Court should be wary of attempts torestrict the use by the jury of the combined knowledge and experience of its members,which as the Court said, is itsgreatest contribution to the trial process.[19] Judge Harvey properly recognised that the weight to be given to evidence is essentially a jury matter. [20] In Parris v Attorney-General [2004] 1 NZLR 519 at 523 the Court of Appeal said:[13] ... There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.[14] It is vital, however, to appreciate the proper compass of the word "reasonably" in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear–cut in favour of the accused, it should be left for the jury to decide.[21] In all the circumstances I am satisfied that Judge Harvey applied the test in s 347 correctly by declining to discharge the applicant.Result[22] No error of law having been established, the application for judicial review is dismissed. M A Frater J