Bishop v The Queen - [2016] NZHC 2548

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-386 [2016] NZHC 2548

BETWEEN
BARCLAY BISHOP

Appellant

AND

THE QUEEN Respondent

CIV-2016-485-387

BETWEEN JOSHUA MAPSON Appellant

ANDTHE QUEEN Respondent

Hearing:
Court:

5 September 2016

Cull J
Judge D McGregor
Judge J Billington QC

Appearances:

M Bott and S J Taylor for appellants
Major M Harding and Capital G Davies for respondent

Judgment:

6 October 2016

JUDGMENT OF CULL J

A The appeals are allowed.

B The convictions and sentences are quashed.
C The reduction in rank of Lance Corporal Mapson is reversed. D We direct a judgment and finding of acquittal to be entered.

BARCLAY BISHOP v THE QUEEN [2016] NZHC 2548 [6 October 2016]

REASONS OF THE COURT

(Given by Cull J) Contents

Introduction..................................................................................................................................................[1] Background ..................................................................................................................................................[4] Mapson’s in-cell statement......................................................................................................................... [11] Authority for compulsory testing ...............................................................................................................[13] The charges ................................................................................................................................................[22] What needed to be proved? ...................................................................................................................[22] Appellate review ........................................................................................................................................[29] Grounds of appeal ......................................................................................................................................[30] The admissibility of the in-cell statement ..................................................................................................[35] Were the post-incident drug test results of the other soldiers admissible against the appellants? ..............[54] The legal framework for compulsory drug testing of members of the Armed Forces ...........................[58] Post-incident/accident testing................................................................................................................[68] Compliance with Enactments................................................................................................................[79] Section 30 Evidence Act analysis..........................................................................................................[84] Judge’s direction to the Court Martial ........................................................................................................[88] The direction on drink-spiking ..............................................................................................................[89] Private Brame’s pleas of guilty and conviction of supply ................................................................... [106]
No direction on reliability ................................................................................................................... [109] Decision ................................................................................................................................................... [116] Procedural Irregularities ......................................................................................................................[122] The result ................................................................................................................................................. [126]

Introduction

[1] Private (Pte) Barclay Bishop and Lance Corporal (L/Cpl) Joshua Mapson (the appellants) were each charged of doing an act likely to prejudice service discipline contrary to s 73(1)(a) of the Armed Forces Discipline Act 1971, in that they knowingly consumed NBOMe, a psychoactive substance. These charges followed the arrest of the two appellants and six other soldiers by the New Zealand Police in Palmerston North, when they were demonstrating odd, irrational and strange behaviour.

[2] The appellants were both convicted in the Court Martial and were sentenced to 14 days’ detention and fined the equivalent of seven days’ pay. For Pte Bishop this was $685.00 and for L/Cpl Mapson this was $840.00. L/Cpl Mapson was reduced to the rank of Private.

[3] The appellants appeal against their convictions for conduct prejudicial to service discipline and their sentence.

Background

[4] In the afternoon of 24 October 2015, the appellants attended a barbeque at a private address in Palmerston North to belatedly celebrate Pte Bishop’s birthday. During the course of the afternoon and into the evening considerable alcohol was consumed by a number of soldiers including the two appellants as well as some civilians who were attending the function.

[5] There was evidence of discussions amongst some of those present about going into town and buying ecstasy and one of the soldiers said he knew someone who could supply it.

[6] Later in the evening, a group of soldiers went into Palmerston North by taxi and taxi van respectively to a bar. The appellants were part of this group.

[7] In the early…

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 Bishop v The Queen

Details

AGLC: Bishop v The Queen [2016] NZHC 2548
Case: [2016] NZHC 2548
Decision Date: 6 October 2016

CaseChat Overview and Summary

The appeals of Private (Pte) Barclay Bishop and Lance Corporal (L/Cpl) Joshua Mapson were heard by Cull J in the High Court of New Zealand. The appellants were convicted in the Court Martial of doing an act likely to prejudice service discipline, contrary to s 73(1)(a) of the Armed Forces Discipline Act 1971, in that they knowingly consumed NBOMe, a psychoactive substance. The appellants were sentenced to 14 days’ detention and fined the equivalent of seven days’ pay. L/Cpl Mapson was reduced to the rank of Private. The grounds of appeal were that the Judge erred in the pre-trial hearing of 9 May 2016, by finding that the evidence of drug testing of other soldiers and their results were not improperly obtained and were admissible against the accused; the Judge misdirected the Court Martial in the summing-up; and the findings of guilty could not be supported having regard to the evidence. The court found that the Judge erred in admitting the in-cell statement of L/Cpl Mapson, because there was a failure to caution him, which breached s 23 of the New Zealand Bill of Rights Act 1990. The post-incident drug test results of the six other soldiers were also inadmissible against the appellants, because the tests were not admissible in a Court Martial and it defied logic and fairness to exclude the appellants’ tests that may self-incriminate them, but allow third party tests to incriminate them and prove charges against them. The court also found that the Judge’s direction to the Court Martial did not fairly balance the evidence of Drs Jessamine and Poulson and Pte Brame, in that it failed to adequately address their evidence in cross-examination. The Judge should have given a direction under s 122 of the Evidence Act about the reliability of the in-cell statement. The appeals were allowed, the convictions and sentences were quashed, the reduction in rank of L/Cpl Mapson was reversed, and a judgment and finding of acquittal was entered.

Orders