Gray v Police
[2016] NZHC 2060
•31 August 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2016-419-00024 [2016] NZHC 2060
BETWEEN IVAN JOHNSON GRAY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 31 August 2016 Counsel:
G Walsh for Appellant
T C Tran for RespondentJudgment:
31 August 2016
Reasons:
1 September 2016
JUDGMENT OF DUFFY J
This reasons for judgment was delivered by me on 1 September 2016 at 2.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors / Counsel: Crown Solicitor, Hamilton
G Walsh, Barrister, Hamilton
GRAY v NEW ZEALAND POLICE [2016] NZHC 2060 [31 August 2016]
[1] Mr Gray appeared in the District Court at Hamilton on 4 March 2016 in relation to three charges: possession of a Class C controlled drug, namely cannabis;1 possession of a Class A controlled drug, namely methamphetamine;2 and possession of a pipe or other utensil for the purpose of commissioning an offence against the Misuse of Drugs Act 1975.3 Judge Connell found the charge of possessing cannabis to be proved beyond reasonable doubt and dismissed the remaining charges.4
Mr Gray appeals his conviction.
District Court decision
[2] The District Court decision includes a brief summary of the factual background as follows:
[5] Background facts are these, that on 30 May at 11.30 pm whilst on patrol in this city, two police constables observed the defendant Mr Gray standing alongside a parked motor vehicle. At the same time Ms Smith was seen by the officers to be seated in the driver’s seat of that car. One of the constables said that he thought the keys were in the ignition. A check on that car showed that it was in fact not registered to either of the defendants.
[6] The police stopped and spoke to Mr Gray. They observed, while doing so, a ziplock bag in the boot of the vehicle. It contained a white crystalline substance. That has been proven as methamphetamine. There was a folding knife beside that methamphetamine.
[7] There was some resistance to the police actions at that time and that has resulted in Ms Smith being charged with obstruction. There was methamphetamine found in the boot of the vehicle. There was two glass pipes also found in a compartment in the rear of the vehicle, in the boot of this stationwagon.
[8] In Mr Gray’s jacket some cannabis was found along with some personal documentation including the driver’s license.
[3] Further on, the Judge noted:
[25] It was also conceded [by the police] that the pipes were found in a sock concealed under a packet of washing powder in the compartment at the rear of the car, and at the time of that being discovered by the police, it was in fact a closed compartment. That too has some significance because it indicates a concealment of the pipes and possibly on a relatively long term basis. Those pipes in fact did not show any signs of methamphetamine
1 Misuse of Drugs Act 1975, s 7(1)(a).
2 Misuse of Drugs Act, s 7(1)(a).
3 Misuse of Drugs Act, s 13(1)(a).
4 New Zealand Police v Gray [2016] NZDC 6719.
residue. Concealed and found in that way leaves open the reasonable possibility the defendants were not aware of those items.
[26] Constable O’Byrne conceded too that there were no fingerprints found on the items that had been sent away for analysis by fingerprint experts.
[4] The key issue at trial was whether it could be said that Mr Gray was “in possession” of the cannabis, the methamphetamine and the pipes respectively. Judge Connell summarised the legal test as follows:
[14] The concept of possession includes four aspects as a matter of law. The first is there is proof necessary to show that there was an awareness of where the drug found actually was. Secondly, it must be proved that there was an awareness that the drug found was a prohibited drug. Thirdly, it must be proved there was either actual or potential control of the drug and fourthly there was an intention to exercise that control.
[5] Judge Connell found some inconsistencies in the police officers’ evidence regarding Mr Gray’s jacket:
[39] There are a few inconsistencies between the police officers’ evidence, some of them are easily explained and not of any great significance and others are not. The main inconsistency as I determine it, and I recall asking questions about it in the course of the hearing to clarify matters for myself, was to do with Mr Gray’s jacket. Both Constable O’Byrne and Constable Veysey confirm that Mr Gray initially had the jacket on his person and at one point it was understood in the early stages of this that he was endeavouring to put the jacket on. That jacket then ended up in the boot. There is no unified story as to how it got there. Constable Veysey assumes it ended up there at some point as Mr Gray was being handcuffed. Constable O’Byrne conceded the police took the jacket from Mr Gray and put it in the boot but it is unclear if he is referring to himself or to Constable Veysey.
[6] However, overall he found:
[48] If I look at the position for Mr Gray on the possession of cannabis, consider the photographs produced, consider there is a photograph of Mr Gray wearing that jacket in the police station at a later time, consider the observations of the constable, I am not in any doubt as to him being the possessor of that jacket. What was found in the jacket was a small amount of cannabis and that was accompanied by his own personal documentation, principally his driver’s license and on that basis there is enough in that in my view to come to a clear view that the cannabis located in his jacket pocket belonged to Mr Gray. It was under his control. It was found in a situation where he must have been aware of its presence and aware and had knowledge of the cannabis in his pocket. On that basis there must be a conviction entered in respect of the cannabis charge.
[7] Judge Connell found there was insufficient evidence to prove that Mr Gray had knowledge of or control over the methamphetamine or the pipes in the boot of the car. He therefore dismissed the charges relating to those items.
Grounds of appeal
[8] Mr Gray appeals his conviction on the basis that Judge Connell’s decision was manifestly unreasonable on the facts as found at the hearing and that his decision was wrong in fact and law.
Relevant law
[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.5 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 nothing had gone wrong.”6 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.7
Discussion
[13] The Judge found cannabis was located in Mr Gray’s jacket. The evidence shows there was some uncertainty about whether at the material times the jacket was always on the person of Mr Gray. However, the evidence at the Judge-alone trial was that the cannabis was found in a wallet which also held Mr Gray’s driving licence and his WINZ card. The wallet was found in the jacket that Mr Gray was wearing on the night he was arrested, although it seems the jacket on that occasion was not always on his person. Absent evidence to the contrary, the logical and reasonable inference to be drawn from those circumstances was that the cannabis was in the custody or control of Mr Gray. The presence of the cannabis in a personal item such as a wallet with other items belonging to Mr Gray is a strong indicator that the cannabis was his as well.
[14] Mr Gray did not give evidence denying the cannabis was his. Mary Smith who was accompanying him that night did not give evidence connecting herself to
5 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
6 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
7 At [110].
the cannabis. There was no other evidence to suggest that someone else may have gained access to Mr Gray’s wallet and placed the cannabis there. In the absence of a credible explanation for how cannabis might have come to be in Mr Gray’s wallet without his knowledge there was no evidence to rebut the logical and reasonable inference that the cannabis was his. The prosecution case against him was strong.
[15] Thus, there was ample evidence to satisfy the Judge beyond reasonable doubt that the cannabis in the wallet belonged to Mr Gray. The Judge refers to the cannabis being in the jacket along with other personal items of Mr Gray. In doing so he has been overly general in his description of where the cannabis was located. However, this manner of speech cannot undermine the clear evidence for the prosecution that the cannabis was in the wallet, which was in the jacket. Whilst the evidence regarding the whereabouts of the jacket at all material times is not as precise as it could have been, for the reasons already stated, that imprecision does not diminish the strength of the prosecution case against Mr Gray.
[16] It follows that the appeal must fail.
Result
[17] The appeal is dismissed.
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