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Kerr v R [2012] NZCA 121 (29 March 2012)

Last Updated: 5 April 2012

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] The short point that arises on this appeal is whether the term “knowing” in s 12A(1) of the Misuse of Drugs Act 1975 has an equivalent meaning to “believing”.
[2] Mr Kerr was a shop assistant at a retail gardening outlet “Switched On Gardener” in Whangarei. He was convicted following a jury trial on one count of supplying equipment or material capable of being used to cultivate cannabis, knowing that it was to be so used.
[3] The charge arose from a visit by an undercover officer to Switched On Gardener. The undercover officer spoke to Mr Kerr. The officer had been fitted with a covert recording device. He made various statements to Mr Kerr about what he wanted to do with the items he was seeking to purchase. The jury must have concluded that the discussion indicated an intention to grow cannabis on the part of the undercover officer and to buy and use items from Switched On Gardener for that purpose. The officer ultimately purchased a 400 watt lamp, a fan and carbon filter, three metres of ducting, three metres of Mylar silver foil and a digital timer. He paid $809 for this equipment. The officer returned to the shop on a second occasion again wearing a recording device and purchased further items on the same basis.
[4] Prior to the Judge’s summing up, the issue arose of how the Judge should direct on the question of Mr Kerr’s knowledge of the purpose of the purchase. The trial Judge, Judge de Ridder, summed up on the basis that in terms of knowledge, the issue was whether Mr Kerr “believed” at the time that he supplied the equipment that it was to be used for growing cannabis. It is this direction which Mr Bowden for Mr Kerr submits was a misdirection as to the law.
[5] Section 12A(1) provides:

12A Equipment, material, and substances used in production or cultivation of controlled drugs

(1) Every person commits an offence against this Act who supplies, produces, or manufactures—

(a) any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or

(b) any precursor substance—

knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.

(Emphasis added).

The Judge’s summing up

[6] It was common ground between counsel that there are three elements to the charge of supplying material or equipment. First, the jury has to be sure that the accused supplied the material. The second in this case was that the jury had to be sure that the material was capable of being used to grow cannabis. Third, the accused must have known that the equipment was to be used for the growing of cannabis. There is no issue about the Judge’s direction on the first two elements, and it was accepted that there was sufficient evidence before the jury on which they could find these two elements proved. It was the third element that was the focus of this appeal.
[7] Judge de Ridder received submissions on how he should direct on the third element. We are informed that Mr Bowden argued before the trial Judge, as he has on this appeal, that the jury could not infer the requisite knowledge when the undercover officer never intended to grow cannabis. He submitted that where the purchase of the items was a subterfuge, the requirement of knowing could never be satisfied as Mr Kerr could not correctly “know” that cannabis would be grown with the equipment.
[8] The Judge did not accept the submission. In his question sheet in relation to the third element of the charge he set out the following question:

1.3 Are you sure that the accused knew that the material (Counts 1 and 2)/equipment (Counts 3 and 4) was to be used for growing cannabis?

Note: It is not relevant that the undercover officers had no intention of growing cannabis. The issue is what the accused believed at the time he/she supplied, i.e. are you satisfied that at the time the material/equipment was supplied he/she believed that the materials/equipment was to be used for growing cannabis.

The accused merely being suspicious or reckless as to what the material/equipment was to be used for is not sufficient.

[9] He elaborated on this in his summing up. He said:[1]

[12] ... The issue is what you consider the accused believed at the time he, or she as the case may be, supplied; in other words, are you satisfied that at the time that the material or the equipment was supplied that either Mr Kerr or Ms Collins believed that the materials, or the equipment as the case may be, was to be used for growing cannabis? The accused merely being suspicious or reckless as to what it was to be used for, is not sufficient. The Crown has to prove beyond reasonable doubt that in respect of the respective counts and respective accused, that they knew that the material or the equipment was to be used for growing cannabis.

[17] ... The Crown says that on each occasion the discussion between the relevant undercover officer and the accused was clearly about cannabis growing, and from that you can draw the inference that the accused believed that the purchase was being made for the purpose of growing cannabis.

[10] Mr Bowden submitted that this approach was in error. In essence he argued that before a jury could convict it had to be satisfied that the items supplied actually were to be used in the commission of an offence, and further that they were so used.

The meaning of s 12A(1)

[11] Section 12A was inserted into the Misuse of Drugs Act in 1998.[2] Under the existing law prior to 1998 a person could be liable as a party, if that person knowingly supplied equipment, materials or substances that were actually used in the commission of an offence with the intention that they be so used. Section 12A extended liability to preparatory events where an accused would not have otherwise been liable as a party, by making it a standalone offence to supply, produce or manufacture equipment or material before any offending took place.[3]
[12] Mr Bowden relied on the distinction made by Randerson J in Moore v Police[4] between s 12A(1) which has a mens rea element involving “knowledge” and s 12A(2) which requires only “intention”. However, the distinction does no more than reflect the fact that s 12A(2) relates to an offender having had something under his or her control. In such a situation the intention at the time of possession is the key. Section 12A(1), in contrast, does not revolve around possession of an item, but rather what the supplier, producer or manufacturer at the time of the supply, production or manufacture “knows” will be its eventual use. We see therefore a reason for the use of the different words “knowing” and “intention” in the two subsections.
[13] Mr Bowden argued that parties cannot be liable for aiding and abetting unless the actus reus of an offence is proven. As a general proposition that is correct.[5] However the specific purpose of s 12A was to extend liability beyond that party situation.
[14] The legislature in 1998 can be taken to have been aware of a line of authority relating to the meaning of “knowing” in the criminal context. In R v Nosworthy[6] this Court considered the meaning of “knowing” in relation to a section of the Criminal Code Act 1893 making it an offence to supply a noxious thing knowing that it was intended to be used to procure a miscarriage. It held, following the earlier English decision of R v Hillman,[7] that the word “knowing” was equivalent to “believing”. There could be the requisite knowledge even where there was no chance of a miscarriage being induced.
[15] More recently in R v Crooks[8] this Court had grappled with the meaning of “knowledge”, and whether it is a different concept to that of “belief”. It was observed:

Before dealing with this submission, it is necessary to say something about the word “knowing” as it appears in s 258 of the Crimes Act 1961. The gist of the crime of receiving is the receipt of stolen goods then “knowing” that they have been dishonestly obtained. A person is said to “know” something when he has ascertained, by physical or mental perception, a state of facts or circumstances which creates in his mind a certainty that the point of his inquiry is free from doubt. If this were the test of criminal liability for the crime of receiving, then the only sure method of proof would be to establish that the suspected receiver actually saw the goods being stolen. It was for this reason that the word “knowing” came to be treated in the common law concept of receiving as including “believing”. An early pronouncement on the point occurs in the charge to the jury by Baron Bramwell in R v White [1860] EngR 222; (1859) 1 F & F 665; 175 ER 898, where the indictment was for receiving stolen goods:

“The knowledge charged in this indictment need not be such knowledge as would be acquired if the prisoner had actually seen the lead stolen; it is sufficient if you think the circumstances were such, accompanying the transaction, as to make the prisoner believe that it had been stolen.”

The judgment went on to refer to a number of decisions in which the statement of the law in R v White was adopted.

[16] One of those cases was the Canadian decision of R v Irwin.[9] In that case the charge related to unlawfully supplying or procuring a drug or other noxious thing “knowing that it is intended to be used or employed to procure the miscarriage of a female person”. As in R v Nosworthy, the appellant had sold something capable of bringing about a miscarriage to an undercover officer who never had any intention of using it. It was argued that the appellant could not know something that did not exist. After referring to earlier authority,[10] McDermid JA quoted Murray’s English Dictionary where one of the definitions of “know” was “[t]o have cognizance of (something), through observation, inquiry, or information; to be aware or apprised of...”. He observed that the word “knowing” was used in the looser sense:[11]

... if the person who supplied the drug believes that the person to whom he is supplying it intends to use it to procure a miscarriage, that is sufficient for a conviction under the section. It does not matter that the person to whom the drug was supplied did not in fact intend to use it.

This decision was treated as being consistent with other Canadian case law by the Supreme Court of Canada in United States of America and Minister of Justice v Dynar.[12]

[17] There is therefore a significant body of authority that supports the proposition that “knowing” can mean “believing” in the context of a party being aware of a state of affairs. This is consistent with the meaning of “knowing” in the New Zealand Oxford Dictionary where it is described as “the state of being aware or informed of anything”. Equating the meaning of “knowing” with “believing” is reinforced in s 12A(1) by the fact that what must be known is a future event, namely the use of the equipment in the commission of an offence. This meaning of the word, and the authorities, support the trial Judge’s summing up where he equated the word “knowing” in s 12A(1) with the word “believing”.
[18] There would be great difficulties in interpreting s 12A(1) to require that the prosecution must prove that the purchaser had an actual intention at the time of supply to use the equipment to commit an offence. That interpretation would require the Crown to prove the mental state of the third party purchaser. Buyers (who are likely to be offenders) might have to be called by the Police to prove their mental state. That mental state might bear little relationship to the state of belief of the offender. Further, if the Crown had to prove that at the time of the offending the offender knew a future event in relation to the items supplied, produced or manufactured would certainly happen, the burden imposed could never be met. It is not possible to “know” of a future event dependent on human activity, as it is of a past event. There is always the possibility that an expected future occurrence will not in fact occur. That distinguishes this case from Dynar, on which Mr Bowden relies. The charges of attempting to launder money and conspiracy to launder money at issue in Dynar required knowledge of a past event (that property was obtained from offending) not of a future event (that equipment was to be used in offending).
[19] We do not think that s 12A(1) was meant to be read with either of these two glosses. We are satisfied that the legislative purpose was to make it an offence for a person to do preparatory work in relation to drug offending, prior to the commission of any offence. That preparatory action is itself the offence. It does not turn on correct knowledge of the future supply, production, or manufacture or on the fact that it did happen. It is the knowledge in the sense of being aware or apprised of something that is the key, whether or not what is understood is correct.

Conclusion

[20] It follows that the Judge was correct in framing his summing up on the basis that the meaning of “knowing” for the purposes of s 12A(1) was encapsulated by the use of the more precise word (in the context) of “believing”. The Crown had to prove that belief. As the Judge correctly observed, merely being suspicious or reckless as to what the equipment was to be used for was not sufficient. The Judge gave the standard warning in relation to inferring belief that, if it was equally possible to infer a lack of belief, then the jury must acquit. The mental element was, therefore, fairly put to the jury.

Result

[21] The appeal is dismissed.

Solicitors:
Crown Law, Wellington for Respondent

[1] R v Kerr DC Whangarei CRI-2010-088-1806, 22 June 2011.
[2] See Misuse of Drugs Amendment Act 1998, s 5.

[3] See commentary in Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [MDA12A.01].
[4] Moore v Police HC Tauranga AP11/01, 23 August 2001.

[5] See for example R v Bowern (1915) 34 NZLR 696 (CA); R v Paterson [1976] 2 NZLR 394 (CA) at 395; van Niewkoop v Registrar of Companies [2005] 1 NZLR 796 (HC) at [104]–[105]; Stewart v R [2011] NZSC 62, [2012] 1 NZLR 1 at [6].
[6] R v Nosworthy (1907) 26 NZLR 536 (CA).
[7] R v Hillman [1863] EngR 62; (1863) Le & Ca 343, 169 ER 1424.
[8] R v Crooks [1981] 2 NZLR 53 (CA) at 56.
[9] R v Irwin (1967) 61 WWR 103.

[10] R v Hyland (1898) 24 VLR 101; R v Hillman, above n 7; and R v Titley (1880) 14 Cox CC 502.
[11] R v Irwin, above n 9, at 106.

[12] United States of America and Minister of Justice v Dynar (1997) 147 DLR (4th) 399 (SCC) at [44].