Fair v Police
[2016] NZHC 1907
•17 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2016-404-117 [2016] NZHC 1907
BETWEEN REWI JAMES FAIR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 August 2016 Counsel:
T J Clee for Appellant
S R Jacobs for RespondentJudgment:
17 August 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 17 August 2016 at 11.00 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Tudor Clee, Barrister, Auckland
Meredith Connell, Auckland
FAIR v NEW ZEALAND POLICE [2016] NZHC 1907 [17 August 2016]
[1] Mr Fair was charged with having possession of the class C controlled drug cannabis for the purpose specified in s 6(1)(e) of the Misuse of Drugs Act 1975, namely for the purpose of selling or offering to sell cannabis to any person of or over the age of 18 years.
[2] At a Judge alone trial in the District Court Mr Fair did not deny that he was in possession of the cannabis but he did deny that he possessed it for the purpose with which he was charged. He was found guilty and convicted of the offence.
[3] Mr Fair now appeals against his conviction on the basis that Judge Thomas applied an incorrect legal test in order to determine whether Mr Fair had rebutted the presumption of possession for sale in terms of s 6(1)(e).
District Court judgment
[4] Judge Thomas summarised the factual background to the offending as follows:
[1] Mr Fair, the police in investigating a possible burglary came to your address on 15 October last year. They found you at home, home being for you a sleep out on your mother’s property. They immediately smelt the cannabis that you had just been smoking and once their other inquiries had been completed they turned their attention to that. They searched your sleep out and they found a total of 276 grams of cannabis.
[2] They found it in various forms. Three cardboard tobacco pouches, retail pouches that contained a mixture of tobacco and cannabis. One of those three appeared to contain only cannabis. A white bucket with a lid wedged between the wooden boards of your bed underneath the mattress, inside which were three 1 oz bags of cannabis. A plastic container under the bed that contained four 1 oz bags of cannabis. Another plastic container under the bed, either loose or in a bag that you had removed, which contained an unknown quantity of loose cannabis leaf material but which appears to be in the region of 3 oz.
[3] They found miscellaneous items such as roaches, remnants, cigarette papers, a magazine with the cover torn off which I accept you used for the purpose of making filters for your cannabis cigarettes. They also found a bong.
[5] Mr Fair accepted that the cannabis found in his sleep outweighed a total of
276 grams. Judge Thomas noted that this amount of cannabis was sufficient to
engage the reverse onus in s 6(6) of the Misuse of Drugs Act 1975, so that Mr Fair was required to satisfy the Judge, on the balance of probabilities, that he did not possess any of the cannabis for the purpose of sale.
[6] Judge Thomas summarise the evidence on this point:
[5] You have given evidence and there is plenty to support what you claim about your addiction. You have tendered evidence of a sleeping disorder that you have had since 2014. There are clearly signs that you are a user and a heavy user. There is also an absence of signs that you were a dealer. There were no bags of cash. There were no digital scales. There were no empty snaplock bags awaiting cannabis to be packaged into them. The elephant in the room though is that by your own admission this was a very expensive habit.
[7] The Judge then went on:
[6] By your own admission you were consuming three to four grams of cannabis daily. Even allowing for you to purchase that cannabis in ounce or more lots, you are still talking about a habit that involves at least several hundred dollars a week. Certainly it is a habit which, if you have claimed to have had it since you were 14 years old and if you claim that you have it with this sort of intensity since your sleeping disorder was initially treated in
2014, then this is something that has cost you a lot of money over a long period of time. You need to satisfy me that you were able to sustain that
habit through legitimate means.
[7] If you are not able to satisfy me that you were able to sustain that habit through legitimate means then the only inference I can draw is that you were selling some of the cannabis to support that habit. The seven ounces were packages perfectly, of course, for sale. That means either you were selling them or you had just bought them. You claim the latter.
[8] Mr Fair appeals his conviction on the basis that the Judge’s statement that “[you] need to satisfy me that you were able to sustain that habit through legitimate means” introduced a new legal test and onus of proof which was plainly wrong in fact and in law.
Approach to appeal
[9] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.
[10] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[11] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.1 The error or irregularity must lead to either of the consequences listed in s
232(4)(a) or (b).
[12] A “real risk” that the outcome was affected exists when “there is a reasonable
possibility that a not guilty (or more favourable) verdict might have been delivered if
1 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”:
Matenga v R [2009] NZSC 18 at [30].
nothing had gone wrong.”2 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.3
Analysis
[13] The Respondent accepts that the Judge’s statement that Mr Fair was required to prove that he could fund his cannabis habit through legitimate means could be interpreted as a misstatement of the law. I think that is a responsible concession. Whether Judge Thomas intended to convey that meaning or not, his choice of words conveys the impression that in order to discharge the evidentiary burden, a defendant must specifically prove that he or she is able to fund his or her drug habit through legitimate means. This statement of the law is incorrect. I am satisfied that the Judge has approached the question of Mr Fair’s guilt based upon an error of law.
[14] Due to the weight of cannabis that was found in Mr Fair’s possession, he was required to prove, on the balance of probabilities, that he did not intend to sell any part of the cannabis to any other person. At trial, Mr Fair gave evidence that he was a heavy user of cannabis. He indicated that he would generally smoke “six or seven” tinnies a day and that a typical tinnie would cost about $20. Mr Fair claimed that he had purchased a significant volume of cannabis for his personal use because it was hard to find cannabis and he was worried about getting caught when dealing with drug dealers. He had kept the cannabis in separate containers because the dealer had told him that they would produce different effects when smoked. Mr Fair also produced evidence that he had consulted his doctor regarding a sleeping disorder in December 2014 and that he had visited the counselling services at Unitec between
2011 and 2014.
[15] On cross-examination, Mr Fair acknowledged that the amount of cannabis found in his possession would generally fetch a price of at least $1400. When asked how he had gathered the money to pay for the cannabis, Mr Fair stated that he had completed some cash work in the university holidays and, on re-examination,
affirmed that at the time of his arrest he had been receiving a student allowance of
2 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
3 At [110].
approximately $200. Mr Fair lived in a sleep out at the rear of his mother’s property. His liability to pay her rent or cover outgoings varied depending upon whether he was earning an income or not. Certainly he was not in the same position as someone who rents from an unrelated landlord so his $200 student allowance would have gone further than if he was living independently.
[16] Judge Thomas found it difficult to believe that Mr Fair had access to sufficient funds to finance a personal habit which, on the basis Mr Fair’s own evidence, would have cost him at least $200 a week on an ongoing basis. However, this presupposes that Mr Fair was regularly purchasing cannabis on an ongoing basis. The evidence from Mr Fair did not explicitly say he was a regular buyer of cannabis, only that he had acquired the amount of cannabis found in his possession. There was no other evidence to explain how he came by that amount of cannabis. Thus the conclusion Judge Thomas reached on the ongoing cost of Mr Fair’s drug habit was an inference the Judge drew from the facts available to him.
[17] As counsel for Mr Fair submitted, once Mr Fair had the 276 grams of cannabis he had what he needed. There was no evidence that he was making ongoing purchases of cannabis. Therefore, on one view of the evidence he did not need ongoing funds to purchase cannabis. The explanation for the $1400 worth of cannabis could be that Mr Fair had built up a sum of approximately $1400 through contract work and cash payments, applied it to make large purchases of cannabis up to 276 grams and then stockpiled that amount for his own use. This inferential view was as available on the facts as was the view reached by Judge Thomas, whichever view a Court preferred rested entirely on the Court’s assessment of Mr Fair’s credibility.
[18] Judge Thomas rejected Mr Fair’s evidence in circumstances where the Judge applied the wrong legal test. I am concerned that this error has coloured the Judge’s overall assessment of Mr Fair’s evidence. Mr Fair does not have to establish he purchased the cannabis using legitimate means. All he has to establish on the balance of probabilities is that he possessed the 276 grams of cannabis for a purpose other than sale to persons of and over the age of 18 years. Mr Fair advanced explanations that attempted to discharge the presumption in s 6(6) of the Misuse of
Drugs Act. The Judge did not believe Mr Fair. However, the Judge’s overall impression of Mr Fair’s credibility may well have been coloured by the error of law that he made. Once he decided that Mr Fair could not explain how he could regularly sustain an ongoing cannabis habit by legitimate means, the Judge may have used this as a basis for disbelieving other evidence from Mr Fair as well.
[19] The problem which faces me is that I am now being asked by the respondent to re-assess Mr Fair’s credibility in circumstances where I have not seen a firsthand account of his evidence. The respondent invited me to tease out the credibility findings made by the Judge from the finding that Mr Fair could not satisfy the Judge that the cannabis was acquired by legitimate means. I do not consider that I can carry out that exercise. Assessment of a defendant’s credibility is something best left to a Judge at first instance. There is a reasonable possibility in my view that if the Judge had not made the error that he did, he may have viewed the balance of Mr Fair’s evidence differently. With this case everything hinged on Mr Fair’s credibility as, apart from the weight of the cannabis, there was nothing to suggest he was a seller of cannabis. In this regard the police found no evidence of the usual indicia of cannabis dealing. Accordingly, it is open to a Judge to find that Mr Fair had engaged in contract work, his overheads were low as a result of living on his mother’s property and that once he had acquired some funds he applied them to acquire large amounts of cannabis which he would then stockpile and apply for his own use until those amounts were exhausted. This possible basis for having possession of 267 grams of cannabis needs to be properly assessed.
[20] I am satisfied, therefore that the appropriate outcome is for me to allow the appeal and to remit the matter to the District Court for re-hearing.
Result
[21] The appeal is allowed. The matter is referred back to the District Court for it to be determined in accordance with the law as I have found it to be.
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