IN THE COURT OF APPEAL OF NEW ZEALAND
CA446/2014
[2015] NZCA 31
BETWEEN
JOLENE KEANE
Appellant
AND
THE QUEEN
Respondent
Hearing:
9 February 2015
Court:
Wild, MacKenzie and Lang JJ
Counsel:
Q Duff and GTR Duff for Appellant
S K Barr for Respondent
Judgment:
27 February 2015 at 11.30 am
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.
1
2
Misuse of Drugs Act 1975, s 12. Ms Keane was tried under the surname Tukuafu-Sheehan.
R v Tukuafu-Sheehan DC Auckland CRI-2012-090-4685, 26 June 2014.
KEANE v R CA446/2014 [2015] NZCA 31 [27 February 2015]
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:
12
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
3
4
R v Tukuafu DC Auckland CRI-2012-090-4685, 23 October 2014 at [1].
In his written submissions Mr Duff abandoned his remaining alternative grounds of appeal.
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.
5
6
7
Actual knowledge would be required,
Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers).
At [MD 12.08].
R v Sweeney [1982] 2 NZLR 229 (CA) at 230.
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
1.
8
9
10
Has the Crown proved beyond reasonable doubt that, on or about
23 January 2012, the premises at 62A Godley Road, Green Bay were
At 230, citing R v Thomas (1976) 63 Cr App R 65 (CA) at 69
Adams on Criminal Law, above n 5.
R v Sweeney, above n 7, at 230.
used for the manufacture
Methamphetamine?
or
attempted
manufacture
of
If yes go to question 2.
If no find Ms Tukuafu-Sheehan “not guilty” of permitting premises.
…
2.
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 committed at 62A Godley Road, Green Bay on or about
23 January 2012?
If yes go to question 3.
If no find Ms Tukuafu-Sheehan “not guilty” of permitting premises.
…
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 calling the police?
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
11
R v Bate [2014] NZHC 237; R v Gunbie [2014] NZHC 2804.