Heemi v The Queen - [2018] NZCA 359

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA84/2018
[2018] NZCA 359

BETWEEN	SHANNON TAIMANIA HEEMI Appellant
AND	THE QUEEN Respondent

Hearing:	24 July 2018
Court:	Gilbert, Courtney and Moore JJ
Counsel:	P J Kaye for the Appellant E J Hoskin for the Respondent
Judgment:	10 September 2018 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

Following a three-day trial in the District Court at Manukau before Judge N Sainsbury, Shannon Taimania Heemi was convicted of unlawfully possessing a firearm.
Ms Heemi now appeals her conviction on two grounds, both concerning alleged deficiencies in the question trail. The grounds are first, the question trail erroneously referred to Ms Heemi having to prove on the balance of probabilities that the firearm was in the “exclusive possession” of some other person whereas the statute only requires proof that it was in the “possession” of some other person; and secondly, the question trail failed to refer to an intention to exercise control over the firearm as part of the definition of possession.

Facts

On 5 February 2015 the police were making an inquiry at Ms Heemi’s address in relation to property stolen in a burglary the previous day. Ms Heemi arrived at the address in her car while the police were still at the property. After seeing them she stopped a short distance away. The police approached her. They told her they were investigating a burglary and informed her they intended to search the house and her car under the Search and Surveillance Act 2012. This led Ms Heemi to volunteer that there was a gun in the car. The search which followed located a .22 calibre rifle in the boot.

Issues at trial

At her trial Ms Heemi faced two charges: receiving stolen property[1] and unlawful possession of a firearm. She was found guilty only of the firearm charge, which was laid under s 45(1)(b) of the Arms Act 1983. Section 45(1) provides that a person commits an offence if they carry or are in possession of a firearm without some lawful, proper and sufficient purpose. Section 66 creates a rebuttable presumption that the driver of a vehicle in which a firearm is found is in possession of that firearm.
[1]This related to property taken in the burglary also found in Ms Heemi’s car.
Ms Heemi ran two defences. Only the first, that she was not in possession of the firearm, is at issue on appeal.[2] Ms Heemi’s case was that the person who committed the burglary, Mr Makiri, hid the gun in the boot of her car along with the property stolen in the burglary without her knowledge. Ms Heemi said she first noticed the gun earlier in the day. She had been at court. She went to retrieve her jacket from the car when she saw the tip of the gun. She said she freaked out and drove home…

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 Heemi v The Queen

Details

AGLC: Heemi v The Queen [2018] NZCA 359
Case: [2018] NZCA 359
Decision Date: 10 September 2018 at 3 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Shannon Taimania Heemi appealed against her conviction for unlawfully possessing a firearm. The appeal focused on the question trail, which outlined the legal criteria for the jury's consideration. The primary legal issues were whether the question trail correctly required Heemi to prove that the firearm was in the "exclusive possession" of someone else, and whether it adequately referred to the need for an intention to exercise control over the firearm as part of the definition of possession.

The court found that the requirement for exclusive possession was not erroneous, as it was consistent with the legal precedent and the context of the trial. The court noted that the term "exclusive possession" was explained in the summing-up and was not misleading when considered alongside the judge's comprehensive explanation of possession. The court also determined that the omission of an explicit reference to an intention to exercise control in the question trail did not result in a miscarriage of justice, given the judge's detailed discussion of possession during the summing-up.

Ultimately, the appeal against conviction was dismissed, and Heemi's conviction for unlawful possession of a firearm was upheld.

Orders