Attorney-General v District Court at Auckland HC Auckland CIV 2006-404-5072

[2007] NZHC 1580

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-5072

IN THE MATTER OF     an application for judicial review

BETWEEN  THE ATTORNEY-GENERAL OF NEW ZEALAND

Applicant

ANDTHE DISTRICT COURT AT AUCKLAND

First Respondent

ANDLESYA TKACHENKO Second Respondent

Hearing:         8 December 2006

Appearances: M Corlette and KP Cato for Applicant

J Bioletti  for Respondents

Judgment:      7 February 2007 at 4:30 pm

JUDGMENT OF ASHER J

This judgment was delivered by me on 7 February 2007 at 4:30 pm pursuant to Rule 540(4) of the High Court Rules

………………………………………..

Registrar/Deputy Registrar

………………………………………..

Date

Solicitors:

Meredith Connell, PO Box 2213 Auckland

Crown Law Office, PO Box 2858 Wellington Central

J Bioletti, PO Box 105546 Auckland

ATTORNEY-GENERAL V DISTRICT COURT & ANOR HC AK CIV 2006-404-5072  7 February 2007

Introduction

[1]      Lesya Tkachenko stood trial on 14 June 2006, charged with possession of a false passport under s 31(1)(f) of the Passports Act 1992.   On 16 June 2006 at the close of the Crown case and after three days of trial, the Defence applied for a discharge under s 347 of the Crimes Act 1991.  The application was successful.  On a point different from that raised by Defence counsel, the District Court Judge found that  there  was  insufficient  evidence  of  physical  possession  of  the  passport  by Ms Tkachenko to support a conviction.

[2]      The Crown seeks judicial review of the decision to discharge, and an order setting it aside.  It submits that the learned Judge made a mistake of fact in finding that there was insufficient evidence of physical possession to support a conviction. The Crown further submits that the learned Judge erred in law in finding that proof of physical in the sense of ‘in the hand’ possession of the passport at the time of arrival in New Zealand, was an ingredient of the charge.

[3]      Section 31(1)(f) of the Passports Act 1992 provides:

31     Other offences

(1)    Every person commits a crime who—

…

(f)    Without reasonable excuse, has in his or her possession or under his or her control within New Zealand—

(i)      A passport issued by or on behalf of the Government of any country other than New Zealand, being a passport that he or she knows or has reason to suspect has been falsified or has been obtained by false representation; …

[emphasis added]

[4]      The indictment charged Ms Tkachenko as follows:

that LESYA TKACHENKO on or about the 25th January 2004 at Auckland without reasonable excuse had in her possession within New  Zealand  a passport issued by or on behalf of the Government of Israel being a passport that she knew had been falsified.

[emphasis added]

The indictment, therefore, did not reflect the full wording of s 31(1)(f).   While alleging that Ms Tkachenko had the passport in her possession, it did not allege that it was under her “control”.

[5]      The proper basis for the exercise of the s 347 jurisdiction is uncontroversial. As stated by Tipping J in Parris v Attorney-General [2004] 1 NZLR 519 (CA) at para [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.

It is not contested that a decision on a s 347 application in the District Court is amenable to judicial review.  However, the power to review a District Court Judge’s decision under s 341 must be sparingly exercised, and only when the intervention of the High Court is imperative: Auckland District Court v Attorney-General [1993] 2

NZLR 129, 136.

The decision to discharge

[6]      The District Court Judge in a short judgment did not refer to any authority, but appears to have applied the approach set out in Parris v Attorney-General to the exercise of the s 347 jurisdiction.  The essence of his decision was that there was no evidence of an essential element of the charge, namely proof that the accused had the passport in her physical possession on the day that she arrived in New Zealand. Rather, it was held by an associate, who travelled with her.   He found that the evidence was that the passport did not reach her possession until long after the date in the indictment of 25 January 2004.  For that reason he discharged her pursuant to s 347 of the Crimes Act 1961.

The principles of judicial review

[7]      In  considering  the  District  Court  Judge’s  decision  the  usual  principles applicable to judicial review will apply.  It is not for this Court to consider the merits of the District Court Judge’s exercise of his discretion.  Rather, the enquiry is limited

to whether he made an error of law in his interpretation of the meaning of “possession” in s 31(1)(f), or whether on the evidence that is not in dispute he made any palpable mistake of fact on the issue of physical possession.

Mistake of fact: did Ms Tkachenko have physical possession of the passport?

[8]      It is convenient to deal first with the Crown’s factual challenge to the Judge’s decision, namely that as a matter of fact Ms Tkachenko did have physical ‘in the hand’ possession of the passport on or about 25 January 2004, and that the Judge was mistaken in fact in concluding that she did not.

[9]      The evidence at the hearing had disclosed that the Customs officer who dealt with Ms Tkachenko was uncertain as to whether it was Ms Tkachenko who was carrying her passport, or whether in fact it was the male person accompanying her (later identified by the name of “Sasa”) who was carrying it.   The officer stated, when asked, that when the two of them went through Customs she could not recall who was carrying the passport.

[10]     Ms Tkachenko was interviewed and that interview was recorded by video. She was asked about the passport and explained the circumstances of her taking possession of the passport outside New Zealand.  She made general statements to the effect that she “used” the passport to enter New Zealand.  She said that the passport in question was the passport that “I arrived with” and that “Sasa…took my passport away…”  She also said:

Ah, on my arrival also I didn’t have a passport on me ah it was left with that Sasa.  When time came for my visa to expire I started to scream and demand for a visa to be extended and I told them that I want passport in my hand.

[11]     The  District  Court  Judge’s  interpretation  of  these  exchanges  was  that Ms Tkachenko did not have physical possession of the passport when she came through New Zealand Customs on 25 January 2004.   Rather, her male companion “Sasa”  had  hold  of  the  passport  when  the  two  came  through  Customs,  and presumably he presented it to Customs on behalf of them both, and then retained it for some period afterwards.  Ultimately, she only got the passport back with great difficulty.

[12]     The Judge’s conclusion that there was no proof of physical possession was not the only conclusion open to him in the circumstances.   The exchanges could possibly be interpreted as demonstrating physical possession by Ms Tkachenko on

25 January 2004.    However,  the  evidence  as  to  possession  was  certainly  rather unclear, given the lack of any precise testimony as to who was holding the passport at the time of entry into New Zealand, and given that the Customs officer was not alert to the false passport at the time.

[13]     It  has  not  been  demonstrated  that  the  Judge  made  any  mistake  in  his assumption of a lack of proof of physical possession.  There is no direct evidence of such possession, and Ms Tkachenko’s statement indicates that her companion may have had the passport when they went through Customs.   There was enough uncertainty and vagueness for the Judge to conclude that physical possession could not be proven to the point where a jury properly directed, could convict.  It has not been shown that his finding on the point contained a reviewable error.  That ground of challenge to the decision does not succeed.

Error of law: does possession in s 31(1)(6) mean only physical ‘in the hand’

possession?

[14]     The Crown submits that the learned District Court Judge made an error in his decision in equating possession in the relevant section with only physical possession. It is necessary to consider the meaning of the word “possession” in the context of the section.

The ordinary legal meaning of the word “possession”

[15]     There is considerable case law on the meaning of “possession”, both in the criminal and civil law.  Lord Parker CJ in Towers & Co Ltd v Gray [1961] 2 QB 351 stated at 361 that "the term 'possession' is always giving rise to trouble". As Chilwell J commented in Agriculture and Fisheries Ministry v Bennett [1977] 1

NZLR  64  at 67,  “it  still  is”,  particularly in  cases  relating  to  the  possession  of narcotics.  There is, however, an established distinction between what is sometimes referred to as “physical possession” as distinct from “legal possession”.

[16]     “Physical possession” is said to be the actual physical holding of an item, whereas the phrase “legal possession” involves the wider concept of control.   The Court of Appeal in R v Cox [1990] 2 NZLR 275, 278 said of legal possession that:

[It] involves two, not three, elements.   The first, often called the physical element, is actual or potential physical custody or control.   The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed); and an intention to exercise possession.

[emphasis added]

This statement has been frequently applied since: R v Cossey (1990) 6 CRNZ 185

Allan J,  Anderson  v  New  Zealand  Police  HC  WN  AP 284-97  10 October 1997, Ellis J; Kennedy v Police HC CHCH A 78-00 13 July 2000, Chisholm J; Batty v Choven [2006] NZAR 127.

[17]     The use of the phrase “potential physical custody or control” in R v Cox invokes the concept of the ability to gain or regain possession, and to dictate what happens  to  the  item,  even  if  the  item  is  not  in  the  hand.    Indeed,  the  word “possession” when used in criminal statutes has been long interpreted by the Courts as involving something more than actual physical custody.  This has become part of the usual parlance of the word.  While the New Zealand Oxford Dictionary defines possession as “the act or state of actual holding or occupancy”, the definition also includes a wider reference, consistent with the definition in R v Cox, of “Law power or control similar to lawful ownership which may exist separately from it”.

[18]     The close similarity between the legal definition of “possession” and the definition of “control” can be seen in the statement by Lord Morris of Borth-Gest in R v Warner [1969] 2 AC 256, 289, quoted in R v Cox at 278:

In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which show that he was assenting to being in control of it …

I conclude that when the word “possession” is used in a legal context, including a statute, its meaning includes potential possession.  The issue in this case is whether this ordinary legal meaning is altered by the addition of the phrase “or control”.

Effect of additional words “or control”

[19]     There are three possible explanations for the juxtaposition of “possession or control” in s 31(1)(f) of the Passports Act 1992.   The first possibility is that the words “or control” were added to invoke a broader concept than “possession”, where the knowledge and intention that are a requisite part of the legal meaning of the word “possession” do not have to be present.  The second is that the words “or control” were simply added out of an abundance of caution, to ensure that the sort of limited interpretation placed upon the meaning of the word “possession” in some cases like Attorney-General v Gillespie [1959] NZLR 746, would not be applied to s 31(1)(f). The third possibility is that “control” was added to create two different concepts, whereby “possession” is limited to actual physical possession or “in the hand” possession, as an alternative to the concept of “control”. It is implicit in his decision that this last explanation is what the District Court Judge eventually accepted.

[20]     Mr Bioletti  for  Ms Tkachenko  has  submitted  that  there  is  a  difference between the meaning of the words “possession” and “control”.  He emphasises that the statutory language is disjunctive and establishes a prima facie difference between the possession and the control of a false passport.   He says that possession and control must in the context of s 31 mean two different things.  He submits that the Judge was right to conclude that possession must mean only physical possession, given the contrast of the juxtaposing word “control”.

[21]     Certainly the Courts  will  generally assume that  every word  used  by the legislature is intended to have some legislative effect: East London Railway v Whitechurch (1874) [LR] 7 HL 81, 91, and Craies on Legislation (8 ed 2004) at

20.1.23.  Viscount Simon in Hill v William Hill (Park Lane) Ltd [1949] 1 AC 530,

546-7 put it this way:

When the Legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.

[22]     However, it is equally clear that if to attach meaning to a particular word or expression would deprive the surrounding provision of meaning, or render its meaning absurd, the Courts will disregard the word or expression as not adding to the meaning: R v East Ardsley Inhabitants of East Ardsley (1850) 14 QB 793, 801. It was said by Lord Macnaghten in Commissioners of Income Tax v Pemsel [1891] AC 531, at 589:

It  is  not  so  very  uncommon  in  an  Act  of  Parliament  to  find  special exemptions which are already covered by a  general  exemption.    Nor  is surplusage or even tautology wholly unknown in the language of the Legislature.

[23]     There have been cases where the presence of the words “or control” have been seen to introduce a concept additional to the R v Cox concept of possession.

[24]     In Marine Department v Sherman [1973] 1 NZLR 221, where the charge was that toheroa were in the “possession or control” of a defendant, Speight J held that toheroa were in the defendant’s “control”, when he was in a position to select those he wished to retain, and in a position where he could have stopped the toheroa from digging themselves back into the sand. It was implicit in the Judgment that the word “control” could have a wider meaning than the word “possession”.

[25]     In  Agriculture  and  Fisheries  Ministry  v  Bennett  [1977] 1 NZLR 64 a respondent had been observed with two other persons in a boat, and hauling it out of the water onto a trailer. The boat contained a plastic container with 11 undersized crayfish. The question was whether the defendant could be said to be in possession of the crayfish. Chilwell J at 67 referred to Stephen’s Commentaries on the Laws of England (21 ed) vol I at 430. That extract highlighted the difference between possession in ordinary parlance, denoting the manual detention or occupation of a thing, and legal possession which is both wider and narrower than physical possession. It was observed that an employee who has care of an item, such as a shepherd of sheep, does not have possession in the eyes of the law, but only the mere charge or oversight of the item. The goods are really under the employer’s control, and that employer would have legal possession. Thus, it was said, a person has constructive possession or possession in law of an item when a third party who is acting on the original possessor’s instructions, has actual possession of the thing.

[26]     Chilwell J concluded that the meaning of the word possession must depend on the statutory context in which it is used.  The section that Chilwell J had to deal with  was  s 2(2)  of  the  Fisheries  Act 1908,  which  referred  to  persons  having “possession of or control over the fish…”.   Chilwell J distinguished between the concepts of “possession” and “control”.  He stated at 71:

While it is difficult to envisage the concept of all persons in a boat being regarded as being in possession of it, it is not so difficult to envisage the concept of each person in a boat playing a part in its control or, more precisely, being jointly in control over it.

[27]   These cases help demonstrate the difference between the concepts of “possession” and “control”.  It is possible for a person to control a chattel but not have legal possession of it, as in the example given by Chilwell J.  Not all the people in a boat might be regarded as being in possession of it, but it could be envisaged that they were all playing a part in directing what should happen to the boat, and could be fairly regarded as jointly in control over it.   The Legislature might well have wished to add the words “or control” to introduce a new concept that will capture conduct where there is no element of physical association with the item in question.

[28]     It is possible that a person could be guilty of control of the passport but not guilty of possession of the passport, for instance, where the controller of the passport lived in a different part of New Zealand and had no physical association with the passport at all.  Indeed, Mr Bioletti for Ms Tkachenko fairly raised the possibility of a trafficker being in control of a passport, where a trafficker who had no physical connection with a passport could arrange for it to be brought to New Zealand by another person.   These hypothetical examples demonstrate the possibility that in certain fact situations a person might be in control of a passport, but not have any physical association with it.  This may be why Parliament has added the words “or control”.  In doing so the Legislature did not, as a matter of logic, limit the R v Cox definition of the word “possession” to the narrower concept of ‘in the hand’ possession.    What  has  happened  is  the  wider  concept  of  “control”  has  been introduced to sit alongside the ordinary legal concept of “possession”.

[29]     Further, it must be recognised that those who draft documents, and even those who draft legislation, may on occasions introduce words to allay any fears of an unduly restrictive interpretation.  It may have been that there was a concern on the part of those drafting legislation that the word “possession” might be limited to physical possession only, and out of an abundance of caution, the phrase “or control” added to make it clear that there could still be an offence committed by a person controlling rather than having physical possession of a passport.  It should not be a necessary assumption that the use of the word “control” should thereby restrict the ordinary legal meaning of the word “possession” to only physical possession.  I do not accept the submission that “possession” must exclude possession by control, that is, potential or legal possession, just because the word “control” follows, even if it does not add anything.

Conclusion on the meaning of the word “possession”

[30]     Therefore, the assumption that was presumably made by the District Court Judge, that possession had to mean only in the hand physical possession given the juxtaposition in a disjunctive phrase of “or control”, was incorrect.  Rather, the word “possession” has its full legal meaning referred to in R v Cox of the physical element of actual or potential physical custody or control,  combined  with  the necessary knowledge  and  intention.    Potential  possession  as  well  as  actual  possession  is enough.

[31]     There was sufficient evidence adduced by the Crown to form the basis for a jury   to   reasonably   conclude   that   at   the   time   she   went   through   Customs Ms Tkachenko was in control of the passport, as distinct from physically possessing the passport.   Indeed, her counsel, Mr Bioletti, did not contest that.   In her video statement she described how the passport had been prepared and given to her before coming to New Zealand, by a person different from her companion at Customs. There was nothing to suggest that she was coerced into handing over her passport to her companion before going through the arrival hall, if indeed she did hand it over. It does seem quite possible that as part of the plan that had been developed to improve  her  chances  of  getting  through  Customs,  she  had  chosen  to  give  her passport to her companion.  He would present it to Customs as if they were a couple,

which might make it less apparent that she was a courier.  There was thus enough evidence for a jury to reasonably conclude that during that process, and certainly at some stage on 25 January 2004, (the date stated in the indictment), Ms Tkachenko had control of the passport in the sense of being able to direct what should happen to it.  I emphasise that there remains an issue as to whether on the facts the Crown can prove the requisite degree of control on Ms Tkachenko’s part at trial.  It is for a jury to determine whether the test is met.

[32]     For these reasons I consider that the learned Judge made an error of law in discharging Ms Tkachenko.

Should there have been an amendment to the information?

[33]     This matter was not pursued with any vigour in submissions.  It seems to me that it cannot be argued on appeal that the learned Judge should have amended the information, as the transcript shows that an amendment was not sought.  Counsel did observe to the District Court Judge in the course of submissions that it was too late to amend the indictment, and the Judge agreed.  There was, therefore, no argument on the topic.   Counsel and the District Court Judge were right to not pursue the matter.

Discretion to grant relief

[34]     The question arises as to what relief should be granted, given that I am satisfied that the learned District Court Judge made an error of law in dismissing the charge under s 347 of the Crimes Act, and that no such order should have been made and the trial should have continued.

[35]     Matters that are relevant to the granting of relief include any delay in making the application and the degree of prejudice if a rehearing should be ordered.  On the other hand, it must also be recognised that it is in the public interest to have criminal charges properly determined on the evidence.  Society expects the due completion of such proceedings.  A failure to so complete them can mean that persons can escape the  consequences  of  wrongdoing,  to  the  detriment  of  the  public.    In  this  case,

escaping the consequences of wrongdoing could include a possible successful application for residence by a person who otherwise would not be entitled to bring such an application or have it favourably considered.  As was stated by Tipping J in Parris at 525 in regard to a wrongful s 347 discharge:

Society has therefore been deprived of the proper constitutional outcome of a jury verdict.  The means by which Mrs Parris obtained her acquittal cannot be justified in law. That prime facie should be remedied.

Tipping J stated that in the case before him there should be an opportunity at the Crown’s option for a retrial, unless the Court was of the view that this would be so inappropriate as to amount to an abuse of process (at [21]).

[36]     In Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 137-

138, it was found that the District Court Judge had exercised a s 347 discretion erroneously, but because of undue and prejudice and delay, it would be unfair to quash the decision.  In that case there was a seven month delay between the decision and the Crown’s application to review.  There was then considerable further delay in having the review proceedings determined.   The matter came before the Court of Appeal three years and nine months after the date of the alleged offence.   It was decided that the delay at that point was fatal, and the Court declined to quash the decision.

[37]     The alleged offending in this case took place on 25 January 2004, but did not come  to  the  attention  of  the  Authorities  until  28 October 2004.    There  is  no suggestion of delay by the Police up to the time of trial in June 2006.  I am informed from the Bar that there is a possibility of a backup trial in the District Court towards the middle of next year, although a firm trial date is more likely to be towards the end of the year.  There has been no particular delay in pursuing this application.  The decision was made on 16 June 2006 and the written record was made available on

24 July 2006.  In those circumstances, filing a statement of claim by the Crown on

17 August 2006 did not involve unreasonable delay.

[38]     The effluxion of time between the alleged offending and trial is a matter of concern, but these facts do not indicate any contribution to that delay by fault on the part of the Crown. In Parris v Attorney-General the period between the incident and

the Court’s decision was also well over three years, and there was a submission that a retrial would serve no useful purpose.   However, the High Court’s decision to direct a retrial was upheld.

[39]     There is no particular prejudice (other than general prejudice) referred to by counsel for Ms Tkachenko.  On the material before me I do not consider the delay so acute as to amount to an abuse of process.  It is not as extreme as that in Auckland District  Court  v  Attorney-General,  and  given  the history that  I  have  outlined  I consider that the option should be left for the Crown to seek a retrial.

[40]     Mr Bioletti has asked me to consider the fact that Ms Tkachenko may be a victim of trafficking.  He also points to the fact that Ms Tkachenko has already been granted a 12 month temporary permit to defend the charge, and the right to submit an application for residence on the basis of a relationship if she wished.  However, I do not have proper evidence before me to determine these issues, and I do not consider that they are relevant to the exercise of my discretion. I do not consider that the fact that she has received some favourable consideration from the Removal Review Authority is a factor that is relevant to whether there should be a new trial or not. This may be fortuitous.  I consider that the public interest in having a trial process carried through to its proper conclusion by trial outweighs any general prejudice arising from the delay.

Result

[41]     The Court’s power to review should be sparingly exercised.   However, I consider that this is a proper case for the Court to intervene.  I therefore set aside the s 347 order of the District Court Judge of 16 June 2006 and direct a retrial, subject to the Crown’s overriding discretion as to whether to proceed.

………………………….

Asher J