Bennett v R - [2016] NZCA 170

IN THE COURT OF APPEAL OF NEW ZEALAND

CA431/2015
[2016] NZCA 170

BETWEEN	KEREOPA HOWARD BENNETT Appellant
AND	THE QUEEN Respondent

Hearing:	5 April 2016
Court:	Wild, Clifford and Brewer JJ
Counsel:	W T Nabney for Appellant K S Grau for Respondent
Judgment:	4 May 2016 at 2.30 pm

JUDGMENT OF THE COURT

AApplication for extension of time to appeal granted.
BThe appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

Mr Bennett pleaded guilty to a charge of possession of methamphetamine for supply and to one charge of possessing utensils for the purpose of committing an offence involving methamphetamine on 22 October 2014. That was on the second day of his joint trial with his co-defendant, David Anderson, in the Tauranga District Court before Judge Harding and a jury.
The trial against Mr Anderson continued and he was found guilty of possession of methamphetamine for supply and possession of utensils for the purpose of committing an offence involving methamphetamine. On 18 December 2014 Judge Harding sentenced Mr Bennett to four years and three months’ imprisonment.[1]
[1]R v Anderson DC Tauranga CRI-2014-070-1022, 18 December 2014.
Mr Bennett now applies for an extension of time to appeal his conviction for possession of methamphetamine for supply on the ground that he was induced to plead guilty by threats from Mr Anderson.

Extension of time to appeal

Mr Bennett is out of time to bring this appeal by some six months. The issue his appeal would raise is whether a miscarriage of justice would result unless he can have his guilty plea set aside and his conviction overturned. The Crown did not oppose the grant of an extension of time. In these circumstances, we grant Mr Bennett’s application for an extension of time to bring this appeal.

Facts

On 19 March 2014 Mr Anderson was the driver and Mr Bennett the passenger in a car stopped by a police patrol in the Tauranga area. Mr Anderson was arrested for driving while suspended. The police placed him in the back of the patrol car. Mr Anderson was searched, but nothing of interest was found on him.
Mr Bennett was searched separately from Mr Anderson. Mr Bennett was found to be carrying two empty point bags, digital scales and a cut straw in his trouser pocket. In a statement to the police at the time, Mr Bennett said he did not know whose jeans he was wearing, or to whom the scales and bags in the jeans belonged. Mr Bennett was then told to sit down on a grass area near the car. An officer saw him moving loose grass under his leg. It transpired that Mr Bennett had been attempting to hide a further number of zip-lock bags. He was then arrested also.
When the police moved the vehicle Mr Anderson had been driving to put it onto the tow truck, they found a black sunglasses case on the ground over which the car had been stopped.…

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 Bennett v R

Details

AGLC: Bennett v R [2016] NZCA 170
Case: [2016] NZCA 170
Decision Date: 4 May 2016 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Keroapa Howard Bennett (the appellant) versus The Queen (the respondent) was heard on 5 April 2016, with Wild, Clifford, and Brewer JJ presiding. Bennett had pleaded guilty to charges of possession of methamphetamine for supply and possessing utensils for the purpose of committing an offence involving methamphetamine, following his arrest on 19 March 2014. His co-defendant, David Anderson, continued his trial and was found guilty of the same charges. Bennett subsequently applied for an extension of time to appeal his conviction on the basis that he was induced to plead guilty by threats from Anderson. The Crown did not oppose the grant of an extension of time, leading the court to grant Bennett's application for an extension of time to bring this appeal.

The legal issues the court had to decide were whether a miscarriage of justice would result if Bennett could not have his guilty plea set aside and his conviction overturned. An appeal against a conviction would only be entertained after a plea of guilty in "exceptional circumstances," and Bennett had to demonstrate that a miscarriage of justice would result if the conviction was not overturned. Bennett claimed that he had pleaded guilty because he had been threatened by Anderson and persons associated with him. However, the court had considerable scepticism as to the veracity of Bennett's claims that he only entered his guilty plea because of threats from Anderson. Despite this scepticism, the court accepted for the purposes of this appeal Bennett's assertion that he pleaded guilty because of threats from Anderson. The court found that Bennett had no tenable defence to the charge of possession of methamphetamine, and therefore no miscarriage of justice would result if Bennett's appeal was not allowed.

Bennett's appeal against conviction was dismissed, and the application for an extension of time to appeal was granted. The court concluded that Bennett had no arguable defence to the charge of possession of methamphetamine, and the case against him was overwhelming. Bennett's conviction for possession of methamphetamine for supply and possessing utensils for the purpose of committing an offence involving methamphetamine remains in place.

Orders