Barrett v Police - [2013] NZHC 1416

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-000002 [2013] NZHC 1416

BETWEEN PETER HEMARA BARRETT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 June 2013

Appearances: Appellant in person
J M O'Sullivan for Respondent

Judgment: 13 June 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 13 June 2013 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Crown Solicitor, Hamilton

BARRETT v POLICE [2013] NZHC 1416 [13 June 2013]

[1] On 20 June 2012, after a summary hearing in the District Court, Thames, Judge Marshall convicted Peter Barrett of possessing cannabis for supply on 15
February 2012. The Judge dismissed a related charge of possessing utensils. He discharged Mr Barrett without conviction on a charge of obstructing the police when they searched his house under warrant.

[2] On 14 January 2013 the Judge sentenced Mr Barrett to 180 hours community work for the possession for supply offence, and for a simple possession offence also arising from the 15 February 2012 search, to which he had pleaded earlier. On the possession for supply offence he also ordered Mr Barrett to undergo nine months supervision.

[3] Mr Barrett appeals his conviction on grounds first set out in a notice of general appeal, dated 16 January 2013, and enlarged by notice filed on the day of the appeal. His first ground is that the Judge did not on the day of the summary hearing, or later, issue any minute recording his decision that day. That ground, I explained to Mr Barrett on the appeal, rests on a misapprehension.

[4] On 20 June 2012 all the Judge did, and needed to do, was to note his decisions as to each of the three charges on the informations under which they were laid. Mr Barrett had been sent, as he agreed, the Judge’s full oral decision given that day, and his remarks on sentence, and the notes of evidence. Mr Barrett’s further grounds of appeal reduce to three.

[5] First, Mr Barrett contends, the Judge wrongly upheld the warrant and the lawfulness of the search, even though the warrant was only partly disclosed and, he argues, issued on insufficient grounds. Furthermore, on the search the police showed him only an incomplete copy of the warrant. On any basis, he contends, the warrant was invalid, the search was unlawful, and the evidence obtained inadmissible.

[6] Secondly, while Mr Barrett did not contest that he and Ms McCaskill, who was charged with him equally, possessed the cannabis found on the search or its amount, he puts in issue the consequence in law. He contends that under s 6(6) of the Misuse of Drugs Act he discharged any onus on him of negating possession for

supply by the explanation he and Ms McCaskill gave that they possessed it for their use as medication and pain relief. The Judge was wrong, he contends, to reject that explanation. He should have accepted it and required proof of actual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barrett v Police

Details

AGLC: Barrett v Police [2013] NZHC 1416
Case: [2013] NZHC 1416
Decision Date: 13 June 2013

CaseChat Overview and Summary

Barrett v Police is an appeal against conviction and sentence, heard by Keane J in the High Court at Hamilton. The appellant, Peter Barrett, had been convicted and sentenced in the District Court for possession of cannabis for the purpose of supply, and simple possession. The grounds of appeal, three in number, challenged the validity of the warrant for the search of his home, the sufficiency of the evidence to prove possession for the purpose of supply, and the outcome of a related appeal by a co-accused. Keane J found that the warrant was properly issued and the search lawful, that the appellant had not discharged his onus of proving that the cannabis was not possessed for the purpose of supply, and that the outcome of the appeal by the co-accused did not assist the appellant’s case. Both the appeal against conviction and the appeal against sentence were dismissed.

11 R v Terewi [1999] 3 NZLR 62, R v Gray [2009] NZCA 31.

Orders